THE GAMA FOUNDATION v FLETCHER STEEL LTD [2020] NZHC 1265

THE GAMA FOUNDATION v FLETCHER STEEL LTD [2020] NZHC 1265 [9 June 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-000183[2020] NZHC 1265BETWEEN THE GAMA FOUNDATIONPlaintiffAND FLETCHER STEEL LIMITEDDefendantHearing: On the papersAppearances: A J Forbes QC and R A Hearn for PlaintiffW R Potter and J M Phillips for DefendantJudgment: 9 June 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 9 June 2020 at 11.30 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: 9 June 2020[1] The plaintiff has applied by way of originating applications dated 6 May 2020for:(a) leave to appeal an arbitral award dated 5 February 2020;(b) the setting aside of part of the arbitral award that relates to repudiationof the lease that was the subject of the arbitration.[2] The defendant opposes both applications.[3] Both parties agreed to the applications being heard together. However, thedefendant's agreement is conditional on:(a) there being no delay in hearing the leave application caused by this; and(b) the leave application being conducted in accordance with r 26.16, ofthe High Court Rules 2016.[4] Rule 26.16 restricts both counsel to a 30 minute time limit for their oralsubmissions, and to 10 minutes for counsel for the plaintiff to reply.[5] Counsel for the plaintiff seeks an extension of the default time limits in r 26.16for oral submissions on the application for leave to appeal to permit to 60 minutes oforal submissions for each party, with 15 minutes for the plaintiff's reply. This is soughtbecause the large number of questions of law raised and because there is a dispute overwhat factors are relevant to the grant of leave.[6] In support, the plaintiff points to commentary on this rule which says theHigh Court has the power to extend the time for an application for leave to appeal,although this would be the exception rather than the rule. In this case, the plaintiffsays that, as their submissions demonstrate, the merits and strength of the proposedquestions of law need to be considered by the Court in order to decide whether leaveshould be granted.1[7] The defendant opposes this request and considers that the matters can andshould be sufficiently addressed within the time allowance prescribed by theHigh Court Rules. It says the purpose of the leave hearing is not to argue the proposedpoints of law but, in terms of the "merits" aspects of the test for leave, to determinewhether the plaintiff has established the points as sufficiently strongly arguable tojustify an appeal. It says this case is not of sufficient complexity to justify departurefrom the timetable that the rules provide for these types of applications.1 Relying on Gold & Resource Developments (NZ) Ltd v Doug Hood Ltd [2000] 3 NZLR 318 (CA)and Pukeroa Properties (No 2) Ltd v Rotorua Hunting & Fishing New Zealand Ltd [2019]NZHC 1367.Discussion[8] The parties have agreed that this can be determined on the papers and I advisedin my minute of 5 June 2020 that I would do so.[9] The decision in Gold & Resources Developments (NZ) Ltd discussed not onlythe test for leave, but the procedure on an application for leave. It emphasised that thehearing of the application should be kept brief. It assumes that the Judge has read theapplication and the supporting submissions, and so the hearing:2should be merely an opportunity for the Judge to ensure that he or she hasa grasp of the arguments and so enabling a determination to be made ofwhether the applicant has, in light of the nature of the point of law and thefactors to be considered, established a sufficiently strong case to justify thegrant of leave.[10] The decision goes on to cite Lord Donaldson MR in Ipswich Borough Councilv Fisons Plc, where he said "it is not the function of the judge to hear the putativeappeal, before deciding whether or not to grant leave."3[11] There are four general topics raised in the plaintiff's appeal, being:(a) Did the arbitrator correctly apply the rule in Joyner v Weeks?(b) Did the arbitrator properly apply cl 5.1 of the lease?(c) Did the arbitrator properly apply cl 14.1 of the lease? and,(d) Did the arbitrator properly apply the test in cl 8.1(a) in respect of wearand tear of the rear warehouse floor?However, these four issues are then said to give rise to 10 specific alleged errors inlaw. I accept it would be difficult to speak even fleetingly about each of them withinthe time limit provided, as well as to address the other factors relevant to the grant ofleave. However, I am mindful that the merits of the appeal ought to be self-evident on2 Gold & Resource Developments (NZ) Ltd v Doug Hood Ltd, above n 1, at [57].3 Ipswich Borough Council v Fisons Plc [1990] CH 709; [1990] 1 All ER 730 (CA) at 732-733.the face of the submissions, and there can be no expectation that this issue would needto be covered in depth in respect of each issue raised.[12] In my view, having perused the submissions, I consider it would be in theinterests of justice to extend the time for oral submissions, but I only propose to do soby 15 minutes to allow each side 45 minutes to present their case. The right of replywill still only be 10 minutes in length.[13] This extension honours the principle that the hearing should be brief, and themerits of the application should emerge from the written submissions filed in advance,while acknowledging that in this case, the number of errors of law alleged mightrequire a little more time to address.[14] This would only extend the hearing time by 30 minutes so it should still bepossible to hear both applications together.Direction[15] The timeframes specified in r 26.16(4)(a) and (b) of the High Court Rules aremodified so that counsel for the plaintiff and the defendant will each have 45 minutesto give their oral submissions.Solicitors:Corcoran French, ChristchurchMeredith Connell, Auckland