Lee v Ryang [2012] NZCA 247 (14 June 2012)

Court of Appeal of New Zealand

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Lee v Ryang [2012] NZCA 247 (14 June 2012)

Last Updated: 21 June 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA848/2011 [2012] NZCA 247

BETWEEN DAVID LEE Applicant

AND CHUN HEE RYANG First Respondent

AND AUCKLAND COUNCIL Second Respondent

Court: Glazebrook, Randerson and Wild JJ

Counsel: Applicant in person M K Strauss for First Respondent F Divich for Second Respondent

Judgment: 14 June 2012 at 2.30 p.m. (On the papers)

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

2. The applicant must pay costs to both the first and second respondents as for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The applicant Mr Lee applied for special leave to appeal against a judgment of the High Court delivered on 28 September 2011.[1] In that judgment, Fogarty J dismissed Mr Lee’s appeal against a determination by the Weathertight Homes Tribunal finding Mr Lee liable to the first respondent for $427,655.04 as damages for the first respondent’s leaky home. Mr Lee was found to be liable in tort as the project manager at the time of construction of the home. The second respondent was found to be jointly liable with Mr Lee to the first respondent.
[2] Fogarty J subsequently declined leave to appeal to this Court.[2]

The jurisdiction issue

[3] The respondents submit that there is no jurisdiction for this Court to entertain an appeal by virtue of s 95(2)(b) of the Weathertight Homes Resolution Services Act 2006 which provides that the determination of the High Court on appeal from the Weathertight Homes Tribunal is a “final determination” of a claim under the Act. That submission is well-founded. This Court held in Osborne v Auckland Council[3] that there is no further right of appeal to this Court in such circumstances. On that basis alone, the application for leave to appeal must be dismissed.

Other grounds

[4] If there were a right of appeal, s 67(2) of the Judicature Act 1908 would apply. Under that section, leave will not be granted unless the appeal raises some question of fact or law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.[4]
[5] Mr Lee has not identified any question of law or fact which would justify the grant of leave to appeal under s 67(2) of the Judicature Act. The thrust of his proposed appeal is that he should not have been found liable because he had no contractual agreement with the owner whereby he took responsibility for the quality of the building; other contractors who directly caused the loss were not found liable; and other people from whom the first respondent took advice before purchasing the house were not found liable. Mr Lee does not advance any arguments touching on issues of legal principle.
[6] Fogarty J found that Mr Lee had a non-delegable duty of care. In doing so, he applied settled law.[5] Moreover, Mr Lee’s liability as project manager does not depend upon contractual relationships and is unaffected by the liability (or lack of it) by others. No question of law capable of bona fide argument has been identified which is of sufficient importance to warrant a further appeal to this Court. Nor is there any question of fact which would meet those criteria.
[7] It follows that if this Court had jurisdiction to grant leave to appeal, the application would have been dismissed in any event on the basis of the settled principles applicable under s 67(2) of the Judicature Act.
[8] We record that although Mr Lee sought an adjournment on the grounds of ill health, we determined to decide this application on the papers since all relevant materials and submissions were before the Court in written form and the issues were clear and narrowly defined.

Result

[9] For these reasons, the application for leave to appeal is dismissed.
[10] The applicant must pay costs to both the first and second respondents as for a standard application on a band A basis with usual disbursements.

Solicitors:
Grimshaw & Co, Auckland for First Respondent
Heaney & Co, Auckland for Second Respondent

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[1] Lee v Ryang HC Auckland CIV-2011-404-2779, 28 September 2011.
[2] Lee v Ryang HC Auckland CIV-2011-404-2779, 7 December 2011.
[3] Osborne v Auckland City Council (now Auckland Council) [2012] NZCA 199.
[4] Snee v Snee [1999] NZCA 252; (1999) 13 PRNZ 609 (CA) and Waller v Hider [1998] 1 NZLR 412 (CA).
[5] Since Mt Albert Borough Council v Johnson [1979] 2 NZLR 234 (CA).