SIM V NEW ZEALAND HOME BONDS LIMITED HC CHCH CIV 2009-409-000394

SIM V NEW ZEALAND HOME BONDS LIMITED HC CHCH CIV 2009-409-000394 21 October 2009IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2009-409-000394BETWEEN SHIRLEEN SHIA LING SIM Appellant AND NEW ZEALAND HOME BONDS LIMITED Respondent Hearing: 21 October 2009 Counsel: D M Lester for Respondent Judgment: 21 October 2009JUDGMENT OF FOGARTY J[1] This is an application for leave to appeal a judgment of this Court which I delivered on 29 September 2009. In that judgment I examined closely whether or not I was bound to follow an earlier decision of the Court of Appeal: Singh v New Zealand Home Bonds Limited [2009] NZCA 103. [2] I decided that strictly speaking I was not bound but, however, I ought to follow the reasoning of the Court of Appeal. I made it clear in the judgment that I believed the case had not been fully argued before the Court of Appeal. [3] I was also of the view that the facts in that case did not really expose the issue as to the interpretation of the word "failure". I noted that the Court of Appeal did not actually interpret the word "failure" and I had to infer that. Reading between the lines I would have thought it was obvious that I was inviting this issue to be taken back to the Court of Appeal.[4] There is a recent judgment of Judge Neave: New Zealand Homes Bonds Limited v Croft DC CHCH CIV 2009-009-000172 13 October 2009, most of which was drafted before he saw the judgment of this Court. Judge Neave similarly had difficulties with the Court of Appeal judgment and at the end of his judgment he interprets mine as inviting the parties to go back to the Court of Appeal and likewise thought that the issue should go to the Court of Appeal. [5] Leave to appeal is provided by s 67 of the Judicature Act 1908. I have no doubt that this is an important matter that should be considered again. Although the amount at stake in this case is less than $50,000 there are numerous bonds from this company in effect around the country. Mr Lester, who appears in all the cases has indicated there are about half a dozen cases this year. [6] I am satisfied that the question of the meaning of the word "failure" is an issue which needs to go back to the Court of Appeal. The other grounds of appeal would not of themselves justify leave to the Court of Appeal. However, as I apprehend it, once leave is granted the appellant is free in the usual way to settle the appellant's own points of appeal. [7] Accordingly, this application for leave is granted, on the condition that the notice of motion of appeal is to be filed within two weeks. The two week notice was sought by Mr Lester. I agree with it. Obviously his client needs this issue to be resolved. I would endorse that. This is plainly a case of importance beyond the immediate parties and it behoves the appellant to proceed as swiftly as possible with the preparation of the case on appeal. But otherwise I leave the tracking and disposal of this appeal to the Court of Appeal. [8] Costs are reserved.Solicitors: Shean Shing, Auckland, for Appellant D Lester, Christchurch, for Respondent