SIEMER v COMPLETE CONSTRUCTION LIMITED [2020] NZCA 470

SIEMER v COMPLETE CONSTRUCTION LIMITED [2020] NZCA 470 [2 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA556/2019[2020] NZCA 470BETWEEN VINCENT ROSS SIEMERAppellantAND COMPLETE CONSTRUCTION LIMITEDRespondentCourt: Clifford and Courtney JJCounsel: Appellant in personJ M Skinner and E W Davies for RespondentJudgment:(On the papers)2 October 2020 at 11 amJUDGMENT OF THE COURTThe application for leave to amend the grounds of appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] This is an application pursuant to r 34(2) of the Court of Appeal (Civil) Rules2005 to amend grounds of appeal in an appeal which has been brought to the Court byleave.Background[2] In a minute of 11 October 2019 Woolford J granted leave to Mr Siemer toappeal against a decision of Associate Judge Smith dated 12 September 2019 on thefollowing three grounds:1(a) Was leave of the High Court required for Mr Siemer to apply to setaside the bankruptcy notice served on him by Complete ConstructionLtd on 25 March 2019, as determined by Associate Judge Smith in hisminute dated 7 May 2019 and confirmed in his judgment dated12 September 2019?(b) If leave of the High Court was required, what consideration, if any,should be given to the fact that Mr Siemer was "merely responding toa step taken by the Judgment Creditor" as described byAssociate Judge Smith in his minute dated 2 May 2019?(c) Was it appropriate to award costs against Mr Siemer for the hearing on2 September 2019, or at all?[3] Mr Siemer filed a notice of appeal dated 25 September 2019 against thatjudgment, without reference to the grounds on which leave was given. That notice ofappeal was originally rejected, because Mr Siemer had not advised this Court of thegrant of leave by the High Court. The notice was accepted after Mr Siemer advisedthe Court, on 23 October 2019, that leave had been granted.[4] On 5 November 2019 Mr Siemer applied for leave to amend the grounds ofappeal approved by Woolford J. He was advised by the Registry on 22 November2019 that leave was not required. Given the appeal had been brought with leave, thatadvice was clearly incorrect.1 Complete Construction Ltd v Siemer HC Auckland CIV-2019-404-423, 11 October 2019 (Minuteof Woolford J) at [20]; and Complete Construction Ltd v Siemer [2019] NZHC 2273.[5] In a memorandum of 10 December 2019 the respondent opposed the requestedamendment, other than to the extent that the notice of appeal would be amended toconform to the grounds of appeal for which Woolford J gave leave.[6] Other matters arose, particularly relating to security for costs. That issue wasresolved by a judgment of this Court on 14 August 2020 granting Mr Siemer'sapplication for dispensation.2[7] Then, on 20 August Brown J directed that Mr Siemer's application to amendthe grounds of appeal was to be determined on the papers by two Judges in the MISMOlist for 7 September 2020. Mr Siemer then filed a further amended notice of appeal.[8] On 3 September 2020 the respondent advised the Court it took a neutralposition, being content to abide by the Court's decision.Analysis[9] In his minute of 11 October 2019 Woolford J carefully set out the backgroundto Mr Siemer's application for leave, the grounds Mr Siemer advanced and, in turn,the questions of law that arose.[10] We are satisfied that the questions of law set by the Judge provide theappropriate basis for an appeal. We also agree with the reasons Woolford J gave as towhy other aspects of this proceeding, on which Mr Siemer wished to base furthergrounds of appeal, either are not themselves amenable to appeal or are adequatelyreflected in the grounds upon which leave was given.[11] On that basis, Mr Siemer's applications to amend the grounds of appeal onwhich leave were granted are declined. The grounds for this appeal are thosedetermined by Woolford J and set out at [2] of this judgment.Solicitors:Skinner Law, Auckland for Respondent2 Siemer v Complete Construction Ltd [2020] NZCA 350.