HERD & ANOR v HAINES & ANOR [2017] NZCA 201

HERD & ANOR v HAINES & ANOR [2017] NZCA 201 [23 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA65/2017[2017] NZCA 201BETWEEN ROBERT JOHN HERDFirst ApplicantRHUMBA HOLDINGS LIMITEDSecond ApplicantAND RODNEY DAVID HAINES ANDKATHLEEN ANNE NORMANRespondentsHearing: 15 May 2017Court: Kós P, Asher and Brown JJCounsel: D R Bigio QC and M Singh for ApplicantsN Gedye QC for RespondentsJudgment: 23 May 2017 at 4.30 pmJUDGMENT OF THE COURTA The application for special leave to appeal is dismissed.B The applicants must pay the respondents costs for a standard application on a Band A basis together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] The applicants, Robert John Herd and Rhumba Holdings Ltd, are defendants in a proceeding filed in the High Court by the respondents, Rodney David Haines and Kathleen Anne Norman. The respondents sold their launch to Mr Herd for AUD 400,000 plus transfer of land in Vanuatu worth AUD 400,000. Possession ofthe launch was given in May 2012, with Mr Herd's consideration due either 5 May2013 or (he asserts) 26 September 2013. It is common ground neither aspect of the consideration has been supplied. Mr Herd asserts that he did offer land of that value to Mr Haines within time but the respondents rejected it. The cash component was not paid at all, Mr Herd apparently asserting that the refusal of the land allegedly offered meant also that he need not tender that component of the consideration.[2] In October 2013 the respondents retook possession of the launch in Queensland. It was eventually repatriated to New Zealand. The respondents issued proceedings in 2014 seeking summary judgment for an inquiry into loss, judgment for the amount determined on that inquiry, interest and costs.[3] The applicants protested jurisdiction on the basis the matter should be heard in the courts of Vanuatu. The respondents are in New Zealand. Mr Herd resides in Australia. Rhumba Holdings, a Herd company, alone is domiciled in Vanuatu. The sale agreement however provided it was to be governed by the non-exclusive jurisdiction of the Courts of Vanuatu, and interpreted in accordance with the laws of Vanuatu (excluding French law).[4] The applicants' protest to jurisdiction was upheld by Associate Judge Bell inthe judgment delivered 22 December 2015.1 The respondents sought review of that decision and Duffy J overturned it in a decision dated 18 August 2016.2 In a further judgment dated 22 December 2016 Duffy J refused leave to appeal to this Court.3The applicants now seek special leave to appeal under s 26P(1AA) of the Judicature Act 1908.[5] To obtain leave, the applicants must raise a question of law or fact capable of serious argument involving an interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. As special leave is involved, this is no low threshold.1 Haines v Herd [2015] NZHC 3365.2 Haines v Herd [2016] NZHC 1928.3 Haines v Herd [2016] NZHC 3193.[6] The fundamental question posed is whether Duffy J was permitted to consider and rely upon an unfiled draft amended statement of claim, produced afterthe judgment under review was issued. The applicants' complaint is that thiswrongly alters what is mere review into a fresh hearing on new material.[7] We are satisfied that Duffy J's reference to the draft pleading cannot seriouslybe challenged now on appeal. Despite the manner in which the Judge herself phrased matters, the fundamental consideration in the substantive judgment below was not so much the draft revised claim, the effect of which was simply to reduce claim scope, but rather a clearer understanding than prevailed previously as to the exact extent to which domestic law concerns were in fact likely to be in issue.[8] Duffy J's conclusion that the dispute is a straightforward one turning on interpretation of rights and obligations under the variation deed is incontestable.4 We are satisfied the Associate Judge was wrong to place weight on the need for the trial judge to have a sound understanding of Vanuatu land law. This is not a dominant aspect of the claim, either as originally pleaded or as revised. The original pleading is an unsatisfactory mélange of pleading and documentary evidence, but the essential causes of action pleaded focus upon the contractual instruments and not the earlier peripheral land title points. The amended claim eliminates most of the unnecessary peripheral detail and, again, focuses on the contractual instruments. To the extent that Vanuatu land law principles may yet be important in assessing the defence advanced by the applicants — no statement of defence yet having been filed — it is capable of being dealt with by expert evidence in the usual way.[9] Finally, the dispute between the parties here arose in 2013. These proceedings were commenced in 2014. It is time that they were resolved. The question of whether Duffy J erred in her approach to review is capable of argument, but is certainly not of sufficient importance to outweigh the cost and delay of further appeal.4 Haines v Herd, above n 2, at [12].Result[10] The application for special leave to appeal is dismissed.[11] The applicants must pay the respondents costs for a standard application on a Band A basis together with usual disbursements.Solicitors:Glaister Ennor, Auckland for Applicants