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Leave to appeal dismissed 2019

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2019 Supreme Court cases where leave to appeal a judgment of a lower court was dismissed or deemed to be dismissed where a notice of abandonment was received.

Updated 13 August 2019     

Case number

SC 2/2019

Case Name Michael Main v New Zealand Police
Summary

Criminal Appeal – Whether the Court of Appeal erred in dismissing the appeal against the decision of the Deputy Registrar to refuse the application for leave to appeal. 

Result

The application for leave to appeal is dismissed.

18 February 2019

High Court judgment MAIN v POLICE [2018] NZHC 1828 [15 October 2018]
Judgment appealed from - Court of Appeal [2018] NZCA 527 [26 November 2018]_
Leave judgment - leave dismissed MAIN v NEW ZEALAND POLICE [2019] NZSC 2 [18 February 2019]

 

Case number

SC 3/2019

Case Name Robert Noe and Atrap Incorporated v Ratzapper Australasia Limited
Summary

Civil Appeal – Arbitration Act 1996, sch 1, art 36 – Whether the applicant was “otherwise unable to present” his case – Whether the Court of Appeal erred in dismissing the appeal against enforcement of the arbitral award.

Result A The application for leave to appeal is dismissed.
B The applicants must pay the respondent costs of $2,500.
27 March 2019
High Court judgment RATZAPPER AUSTRALASIA LTD v NOE [2017] NZHC 2931 [28 November 2017]
Judgment appealed from - Court of Appeal Noe v Ratzapper Australasia Ltd [2018] NZCA 597 [18 December 2018]
Leave judgment - leave dismissed ROBERT NOE v RATZAPPER AUSTRALASIA LIMITED [2019] NZSC 33 [27 March 2019]

  

Case number

SC 4/2019

Case Name Muhammad Shamsud-Dean SAHU KHAN v Mohammed SHARIFF
Summary

Civil Appeal – Whether the Court of Appeal erred in dismissing an appeal against the decision of the High Court finding that the tort of deceit had not been established on the evidence.  

Result

A The application for leave to appeal is dismissed.
B No order as to costs.
14 May 2019

High Court judgment Sahu Khan v Shariff [2017] NZHC 294 [28 February 2017]
Judgment appealed from - Court of Appeal

 

Leave judgment - leave dismissed

 

Case number

SC 5/2019

Case Name Caleb Afamasaga v The Queen
Summary

Criminal Appeal – Whether the Court of Appeal erred in analysing the prejudicial effect of text messages produced at trial – Whether that error was a miscarriage of justice   

Result

The application for an extension of time to make an application for leave to appeal is dismissed.
27 February 2019

High Court judgment not publicly available
Judgment appealed from - Court of Appeal AFAMASAGA V R, MAKALIMA V R AND BANABA V R [2015] NZCA 615 [18 December 2015]
Leave judgment - leave dismissed CALEB AFAMASAGA v R [2019] NZSC 16 [27 February 2019]

 

Case number

SC 6/2019

Case Name Richard Lyall Genge v The Queen
Summary

Criminal Appeal – Whether the Court of Appeal erred in declining the application to withdraw the notice of abandonment and bring an appeal out of time.

Result The application for leave to appeal is dismissed.
3 April 2019
High Court judgment Not publicly available
Judgment appealed from - Court of Appeal
Leave judgment - leave dismissed

Case number

SC 7/2019

Case Name Brook Valley Community Group Incorporated v Brook Waimarama Sanctuary Trust, Minister for the Environment and Nelson City Council
Summary

Civil Appeal – Resource Management Act 1991, ss 13, 15 and 360(1)(h) – Whether the discharge of brodifacoum was unlawful – Whether the exempting regulations made under s 360(1)(h) of the Resource Management Act were unlawful – Whether the reduction in the costs award in the High Court was sufficient to reflect the public interest in the case – Whether the Court of Appeal erred in dismissing the appeal 

Result A The application for leave to appeal is dismissed.
B The applicant must pay costs of $4,500 to the respondents (to be divided equally among them, unless they agree otherwise) as well as the respondents’ usual disbursements.
21 May 2019
Transcript

Hearing date 2 May 2019

High Court judgment BROOK VALLEY COMMUNITY GROUP INCORPORATED v BROOK WAIMARAMA SANCTUARY TRUST [2017] NZHC 2665 [31 October 2017]
Judgment appealed from - Court of Appeal BROOK VALLEY COMMUNITY GROUP INC v THE BROOK WAIMARAMA SANCTUARY TRUST [2018] NZCA 573 [11 December 2018] 
Leave Judgment - leave dismissed 

BROOK VALLEY COMMUNITY GROUP INCORPORATED v BROOK WAIMARAMA SANCTUARY TRUST [2019] NZSC 51 [21 May 2019]

 

Case number

SC 8/2019

Case Name Rene Mischelle de Kwant v The Queen
Summary

Criminal Appeal – Whether the Court of Appeal erred in dismissing the applicant’s appeal against the imposition of a sentence of preventive detention. 

Result The application for leave to appeal is dismissed
24 July 2019
High Court judgment Not publicly available
Judgment appealed from - Court of Appeal
Not publicly available 
Leave judgment / leave dismissed

 

Case number

SC 9/2019

Case Name Jenny Lyn Walker v Nelson District Court and Nelson City Council
Summary

Civil Appeal – Whether a Court of Appeal Judge erred in declining to review a Deputy Register’s security for costs decision.   

Result

A The applications for a stay and for leave to appeal are dismissed.
B The applicant must pay the second respondent costs of $2,500.
11 March 2019

High Court judgment
Judgment appealed from - Court of Appeal
[2018] NZCA 550 
Leave judgment - leave dismissed

  

Case number

SC 11/2019

Case Name Talley's Group Limited v Worksafe New Zealand
Summary

Criminal Appeal – Criminal Procedure Act 2011, s 379 – Use of prosecution summary of facts – Whether the Court of Appeal erred in not dismissing the defective charging documents – Whether the Court of Appeal erred in not considering the prosecution’s actions amounted to an abuse of process. 

Result The application for leave to appeal is dismissed.
5 April 2019
High Court judgment WORKSAFE NEW ZEALAND v TALLEYʼS GROUP LIMITED [2017] NZHC 1103 [25 May 2017]
Judgment appealed from - Court of Appeal
Leave judgment - leave dismissed

 

Case number

SC 12/2019

Case Name James Hardie Industries Plc, James Hardie NZ Holdings & RCI Holdings Pty LImited v Karen Louise White, Waitakere Group Limited, Metlifecare Pinseong Limited, Forest Lake Gardens Limited, Vision (Dannemora) LImited (Name changed to Metlifecare Dannemora Gardens Limited) & Metlifecare Coast Villas Limited
Summary

Civil Appeal – Whether the Court of Appeal was correct to find that there is a serious issue to be tried as to whether the applicant owed a duty of care to those affected by the actions or omissions of its subsidiaries – Whether the Court of Appeal was correct to find that there is a serious issue to be tried as to whether the applicant breached the Fair Trading Act 1986 – Whether the Court of Appeal was correct to find that there is a serious issue to be tried as to whether the applicant was a “manufacturer” of goods in breach of the Consumer Guarantees Act 1993 – Whether the Court of Appeal erred in dismissing the applicants’ appeal against a decision of the High Court not to grant summary judgment – (cross-appeal) Whether the Court of Appeal was correct to set aside a decision of the High Court partially upholding a protest to jurisdiction. 

Result A The application for leave to appeal is dismissed.
B The applicants are to pay to the respondents costs of $2,500.
16 April 2019
High Court judgment WHITE v JAMES HARDIE NEW ZEALAND [2017] NZHC 2105 [31 August 2017]
Judgment appealed from - Court of Appeal
Leave judgment - leave dismissed

 

Case number

SC 13/2019

Case Name ANZ Bank New Zealand Limited v Financial Markets Authority
Summary

Civil Appeal – Whether the Court of Appeal erred in holding that the Financial Market Authority’s disclosure of confidential documents obtained from ANZ to third parties was for a permitted purpose under s 59(3) under the Financial Markets Authority Act 2011.

Result A The applications for leave to appeal in SC 13/2019 and SC  21/2019 are dismissed.  
B Costs of $3,500 are awarded to the respondent.
12 April 2019
High Court judgment Not publicly available
Judgment appealed from - Court of Appeal
Not publicly available
Leave judgment - leave dismissed

  

Case number

SC 15/2019

Case Name Eight Mile Style, LLC & Martin Affiliated, LLC v New Zealand National Party and Greg Hamilton
Summary

Civil Appeal – Copyright Act 1994, s 121– User principle – Whether the Court of Appeal erred in its application of damages principles.      

Result

A The application for leave to appeal is dismissed.
B The applicants must pay costs of $4,500 plus usual disbursements to the respondents collectively.
14 May 2019

Transcript

Hearing date 2 May 2019

High Court judgment EIGHT MILE STYLE v NEW ZEALAND NATIONAL PARTY [2017] NZHC 2603 [25 October 2017]
Judgment appealed from - Court of Appeal
Leave judgment - leave dismissed

 

Case number

SC 19/2019

Case Name Robert John Solomon Grace v The Queen
Summary

Criminal Appeal – Whether the Court of Appeal erred in dismissing the appeal against conviction and sentence.    

Result A An extension of time to apply for leave to appeal is granted.
B The application for leave to appeal is dismissed.
12 June 2019   
High Court / District Court judgment Not publicly available
Judgment appealed from - Court of Appeal
Leave judgment - leave dismissed

 

Case number

SC 20/2019

Case Name Paora Tahau v The Queen
Summary

Criminal Appeal – Whether the Court of Appeal erred in finding that the conviction verdict of the jury was not unreasonable nor inconsistent with its acquittal verdicts. 

Result

A An extension of time to appeal is granted.
B The application for leave to appeal is dismissed.
3 May 2019

District Court judgment Not publicly available
Judgment appealed from - Court of Appeal
Leave judgment - leave dismissed

 

Case number

SC 21/2019

Case Name ANZ Bank New Zealand Limited v Financial Markets Authority
Summary

Civil Appeal – Whether the Court of Appeal erred in its redactions of two published judgments pending determination of the Applicant’s substantive appeal to the Supreme Court.  

Result A The applications for leave to appeal in SC 13/2019 and SC  21/2019 are dismissed.  
B Costs of $3,500 are awarded to the respondent.
12 April 2019
High Court judgment Not publicly available
Judgment appealed from - Court of Appeal Not publicly available
Leave judgment - leave dismissed ANZ BANK NEW ZEALAND LIMITED v FINANCIAL MARKETS AUTHORITY [2019] NZSC 40
[12 April 2019]

 

Case number

SC 22/2019

Case Name AN(SC 22/2019) v Prime Minister
Summary

Civil Appeal – Whether the High Court erred in rejecting the applicant’s application for a writ of habeas corpus.   

Result

The application for an extension of time to file an application fort leave to appeal is dismissed.
11 March 2019

High Court judgment
Judgment appealed from - Court of Appeal
Leave judgment - leave dismissed

AN (SC 22/2019) v PRIME MINISTER [2019] NZSC 25 [11 March 2019]

 

Case number

SC 24/2019

Case Name Blue reach Services Limited and Blue Reach Wireless Limited v Spark New Zealand Trading Limited
Summary

Civil Appeal – Whether the Court of Appeal was correct to uphold a decision of the High Court striking out the applicants’ claim on the basis it could not succeed by virtue of s 106 of the Commerce Act 1986. 

Hearing

21 June 2019

O'Regan, Ellen France and Williams JJ

Result A The application for leave to appeal is dismissed.
B The applicant must pay the respondent costs of $4,500 plus usual disbursements.
28 June 2019
High Court judgment BLUE REACH SERVICES LTD v SPARK NEW ZEALAND TRADING LTD [2018] NZHC 847 [30 April 2018]
Judgment appealed from - Court of Appeal BLUE REACH SERVICES AND BLUE REACH WIRELESS LIMITED v SPARK NEW ZEALAND TRADING LIMITED [2019] NZCA 2 [12 February 2019]
Leave judgment - leave dismissed BLUE REACH SERVICES LIMITED AND BLUE REACH WIRELESS LIMITED v SPARK NEW ZEALAND
TRADING LIMITED [2019] NZSC 65 [28 June 2019]

 

Case number

SC 26/2019

Case Name D(SC 26/2018) v The Queen
Summary

Criminal Appeal – Whether the appellant’s call to a mental health line should have been admitted at trial – Whether the appellant should have been permitted to lead evidence under Evidence Act 2006, s 44(1) – Whether the Court of Appeal erred in dismissing the appeal against conviction.

Result The application for leave to appeal is dismissed.
10 July 2019
District Court judgment Not Publicly Available
Judgment appealed from - Court of Appeal D (CA54/2018) v R [2019] NZCA 1 [5 February 2019]
Leave judgment - leave dismissed D (SC 26/2019) v R [2019] NZSC 72 [10 July 2019]

 

Case number

SC 34/2019

Case Name Commissioner of Inland Revenue v Chatfield & Co Limited and Chatfield & Co
Summary

Civil Appeal – Tax Administration Act 1994, s 17 – Whether the Court of Appeal erred in upholding the decision of the High Court that notices issued by the Commissioner requiring the respondent company to furnish certain information were unlawful.  

Result A The application for leave to appeal is dismissed.
B The applicant must pay costs of $2,500 to the respondents.
7 August 2019
High Court judgment CHATFIELD & CO LIMITED v THE COMMISSIONER OF INLAND REVENUE [2017] NZHC 3289 [22 December 2017]
Judgment appealed from - Court of Appeal COMMISSIONER OF INLAND REVENUE v CHATFIELD & CO LIMITED [2019] NZCA 73 [28 March 2019]
Leave judgment - leave dismissed COMMISSIONER OF INLAND REVENUE v CHATFIELD & CO LIMITED [2019] NZSC 84 [7 August 2019]

 

Case number

SC 36/2019

Case Name Michael Edwin Kooiman v F M Custodians Limited 
Summary

Civil Appeal – Whether the Court of Appeal erred in concluding that the managing director of the fund manager had authority to commence proceedings on behalf of the respondent.   

Result A The application for leave to appeal is dismissed.
B The applicant must pay the respondent costs of $2,500.
19 July 2019
High Court judgment KOOIMAN v F M CUSTODIANS LIMITED [2018] NZHC 176 [16 February 2018]
Judgment appealed from - Court of Appeal KOOIMAN v FM CUSTODIANS LIMITED [2019] NZCA 76 [1 April 2019]
Leave judgment / leave dismised MICHAEL EDWIN KOOIMAN v F M CUSTODIANS LIMITED [2019] NZSC 77 [22 July 2019]

 

Case number

SC 37/2019

Case Name Vipassana Foundation Charitable Trust Board v Auckland Council, Raymond Myles O'Brien and Victoria Mei Sien Pichler and Auckland Shooting Club Incorporated 
Summary

Civil Appeal – Whether the Court of Appeal erred in concluding that the respondent Council properly considered the noise effects of the proposed activity when issuing a certificate of compliance under s 139 of the Resource Management Act 1991 (even though the Court of Appeal set aside that certificate).    

Result A The application for leave to appeal is dismissed.
B Costs of $2,500 are awarded to the respondents.
12 July 2019
High Court judgment

VIPASSANA FOUNDATION CHARITABLE TRUST BOARD v AUCKLAND COUNCIL [2017] NZHC 1457 [28 June 2017]

Judgment appealed from - Court of Appeal

VIPASSANA FOUNDATION CHARITABLE TRUST BOARD v AUCKLAND COUNCIL & ORS [2019] NZCA 100

Leave judgment - leave dismissed

VIPASSANA FOUNDATION CHARITABLE TRUST BOARD v AUCKLAND COUNCIL [2019] NZSC 73 [12 July 2019]

 

 

Case number

SC 42/2019

Case Name Maree Howard v Accident Compensation Corporation
Summary

Civil Appeal – Whether the Court of Appeal erred in upholding the Deputy Registrar’s decision to refuse to accept an application for leave to appeal for filing. 

Result A The application for leave to appeal is dismissed.
B The applicant must pay costs of $2,500 to the respondent.
24 July 2019
High Court judgment
Judgment appealed from - Court of Appeal [2019] NZCA 128_

Leave judgment / leave dismissed MAREE HOWARD v ACCIDENT COMPENSATION CORPORATION [2019] NZSC 78 [24 July 2019]

 

Case number

SC 43/2019

Case Name Ridgway Empire Limited v Jill Grant
Summary

Civil Appeal – Precontractual misrepresentation – Whether a representation by a non‑expert that a building is not leaky is a representation of fact or opinion – Whether the Court of Appeal erred in dismissing the appeal.   

Result A The application for leave to appeal is dismissed.
B The applicant is to pay the respondent costs of $2,500.
8 August 2019
High Court judgment GRANT v RIDGWAY EMPIRE LTD [2018] NZHC 2642 [11 October 2018]
Judgment appealed from - Court of Appeal RIDGWAY EMPIRE LTD v JILL GRANT [2019] NZCA 134 [2 May 2019]

Leave judgment - leave dismissed RIDGWAY EMPIRE LTD v GRANT [2019] NZSC 85 [8 August 2019]

 

Case number

SC 45/2019

Case Name Scott v Williams
Summary

Civil Appeal – Whether there are exceptional circumstances in this case to justify an appeal from two High Court decisions under section 75 of the Senior Courts Act 2016 – Whether an extension of time to apply for leave to appeal should be granted. 

Result A The applications for extensions of time for applying for leave to appeal ([2018] NZHC 1979 and [2019] NZHC 935) are dismissed.
B Costs of $2,500 are awarded to the respondent.
25 July 2019
High Court judgment Not publicly available
Leave judgment - leave dismissed SCOTT v WILLIAMS [2019] NZSC 80 [25 July 2019]

 

Case number

SC 46/2019

Case Name Dwayne Russell Warakihi Maaka Smyth-Davoren v Bridget Sutherland
Summary

Civil Appeal – Whether the Court of Appeal erred in upholding the Deputy Registrar’s decision declining to dispense with security for costs.

Result A The application for leave to appeal is dismissed.
B No award of costs is made.
19 July 2019
High Court judgment Not publicly available
Judgment appealed from - Court of Appeal SMYTH-DAVOREN v SUTHERLAN [2019] NZCA 93 [5 April 2019]
Leave judgment / leave dismissed DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN v BRIDGET SUTHERLAND
[2019] NZSC 76 [19 July 2019]

 

Case number

SC 47/2019

Case Name Dwayne Russell Warakihi Maaka Smyth-Davoren v David Parker, Jacinda Ardern and Andrew Little
Summary

Civil Appeal – Whether the Court of Appeal erred in refusing to grant an extension of time to file the case on appeal and apply for the allocation of a hearing date.  

Result

A The application for leave to appeal is dismissed.
B No order as to costs.
1 July 2019

_______________________________

The applications for recall of this Court’s judgments in Smyth Davoren v Parker [2019] NZSC 66 and in Smyth Davoren v Mountbatten [2019] NZSC 67 are dismissed.
8 July 2019

Judgment appealed from - Court of Appeal SMYTH-DAVOREN v DAVID PARKER [2019] NZCA 139 [6 May 2019]
Leave judgment / leave dismissed DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN v DAVID PARKER [2019] NZSC 66
[1 July 2019]
Recall judgment - recall dismissed DWAYNE RUSSELL WARAKIHI MAAKA SMYTH-DAVOREN v DAVID PARKER [2019] NZSC 70
[8 July 2019]

 

Case number

SC 48/2019

Case Name Dwayne Russell Warakihi Maaka Smyth-Davoren v Elizabeth II Alexandra Mary Mountbatton (born Windsor)
Summary

Civil Appeal – Whether the Court of Appeal erred in refusing to grant the extension of time.  

Result

A The application for leave to appeal is dismissed.
B No order for costs.
1 July 2019

___________________________

The applications for recall of this Court’s judgments in Smyth Davoren v Parker [2019] NZSC 66 and in Smyth Davoren v Mountbatten [2019] NZSC 67 are dismissed.
8 July 2019

Judgment appealed from - Court of Appeal
Leave judgment / leave dismissed
Recall judgment - recall dismissed

 

Case number

SC 52/2019

Case Name Wellsford Properties Limited and Garry Edward Hannam v Peter Anthony Sullivan and Port Albert Investments Limited
Summary

Civil Appeal – Whether the Court of Appeal was correct to find Mr Hannam personally liable under s 9 of the Fair Trading Act – Whether Court of Appeal was correct to order damages of $424,371 against the applicant and Mr Hannam – Whether the Court of Appeal was correct to find that the applicant breached the agreement for sale and purchase and the Fair Trading Act 1986. 

Result A Notice of withdrawal having been filed the application for leave to appeal is deemed to be dismissed.
3 July 2019
High Court judgment

SULLIVAN v WELLSFORD PROPERTIES LTD [2017] NZHC 3047 [8 December 2017]

Judgment appealed from - Court of Appeal SULLIVAN v WELLSFORD PROPERTIES LIMITED [2019] NZCA 168 [20 May 2019]

 

Case number

SC 55/2019

Case Name T(SC 55/2019)  v The Queen
Summary

Criminal Appeal – Criminal Procedure Act 2011 – Crimes Act 1961, s 306 – Whether the District Court erred in refusing to dismiss the charges.  

Result The application for leave to appeal is dismissed
26 July 2019
Judgment appealed from - District Court Not publicly available
Leave judgment - leave dismissed PHILIP DEAN TAUEKI v R [2019] NZSC 82 [26 July 2019]