Jones v New Zealand Bloodstock Finance & Leasing Limited [2024] NZCA 623 (28 November 2024)

Last Updated: 2 December 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA35/2024 [2024] NZCA 623

	BETWEEN	GREGORY JOHN JONES Appellant
	AND	NEW ZEALAND BLOODSTOCK FINANCE & LEASING LIMITED Respondent

Court:	Cooke and Palmer JJ
Counsel:	Appellant in person F A King for Respondent
Judgment: (On the papers)	28 November 2024 at 10 am

JUDGMENT OF THE COURT

1. The appeal is struck out for want of jurisdiction.
2. The appellant must pay the respondent costs for a standard appeal on a band A basis for steps taken to date together with usual disbursements.

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REASONS OF THE COURT

(Given by Palmer J)

The context

• [1] New Zealand Bloodstock Finance & Leasing Ltd (NZ Bloodstock) applied in the High Court to have Mr Greg Jones, the appellant, adjudicated bankrupt on the basis of a debt he owed it. Mr Jones filed an interlocutory application seeking to strike out or stay the application or, alternatively, to cross-examine various witnesses. On 8 December 2023, Associate Judge Taylor dismissed Mr Jones’ application.^[1] Mr Jones then paid the debt. No adjudication order was made. Mr Jones now seeks to appeal several preliminary orders. His appeal was accepted for filing. Subsequently, this Court sought submissions from the parties as to whether it has jurisdiction to hear the appeal.

The submissions

• [2] Mr Jones submits that his application to stay or strike out the application for adjudication was in the same category as an application to set aside a bankruptcy notice. In Prescott v Auckland Council, Associate Judge Bell decided such an application was not an interlocutory application and did not fall within s 56(3) of the Senior Courts Act 2016 (the Act).^[2] As a result, the Judge ruled there was an appeal as of right against the decision on that application.^[3] Here, some aspects of the decisions sought to be appealed were of a preliminary nature and fall within s 56(3). Others go to substance and not procedure, ending the matter in so far as the process of adjudication was concerned. The issue is of some significance to practitioners. Mr Jones seeks an oral hearing on the ground that that the Court might breach the rules of natural justice.
• [3] Mr King, for NZ Bloodstock, submits this is a very straightforward issue, that leave is required, and the appeal must fail for want of jurisdiction. In written submissions, he also seeks a restraining order against Mr Jones for five years as a vexatious litigant “should the court be minded to consider this issue”.

Does the Court have jurisdiction?

• [4] Section 56(3) of the Act provides for the jurisdiction of this Court to hear and determine appeals. Section 56(3) provides:

(3) No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

• [5] In Tomar v Khatri, in declining to recall a judgment striking out an appeal, this Court recently held:^[4]

[The appellant] was entitled to appeal as of right against [the adjudication] order, within the prescribed time frame. He was not entitled to appeal as of right against the High Court judgment which determined certain preliminary matters in relation to the application to adjudicate him bankrupt. Leave was required to bring an appeal from the High Court judgment, and leave was not sought or obtained.

• [6] That is the situation here. In the absence of an application for leave to appeal, this Court has no jurisdiction to hear the proposed appeal. This issue has been put squarely before the parties and no issue of natural justice arises.
• [7] We do not accept Mr Jones’ submission that aspects of the decision sought to be appealed ended the matter in so far as the process of adjudication was concerned. Rather, an eventual adjudication order — which Mr Jones could appeal as of right — would have ended the process if it had been made. Neither do we accept the implication in Mr Jones’ submissions that this Court previously decided a matter of his inconsistently with s 56(3).
• [8] It follows there is no jurisdiction for this Court to hear the appeal.

Vexation

• [9] In the absence of a formal application, even if we have jurisdiction to receive one, we do not take up Mr King’s invitation to declare Mr Jones to be a vexatious litigant under s 166 of the Act.

Costs

• [10] The respondent has sought increased costs. Rule 53 of the Court of Appeal (Civil) Rules 2005 (the Rules) provides that the Court may, in its discretion, make any orders that seem just concerning the whole or any part of the costs and disbursements of (relevantly) an appeal or interlocutory application. Here, no application was made because the Court moved to consider whether to strike out the appeal for want of jurisdiction on its own initiative (receiving submissions). Further, because there is no jurisdiction, no appeal has been determined.
• [11] However, we consider a costs order is available and should be made. An appeal was accepted for filing and the respondent incurred “part of the costs and disbursements of ... an appeal”.^[5] This Court has, in a similar situation, previously made such an award and often does so for the steps taken where an appeal is abandoned and costs have been incurred.^[6]
• [12] It follows that it is appropriate for the appellant to pay the respondent costs on a band A basis for steps the respondent has taken to date, together with usual disbursements. We do not consider there is a sufficient basis to order increased costs, particularly given the jurisdiction issue was not raised by the respondent.

Result

• [13] The appeal is struck out for want of jurisdiction.
• [14] The appellant must pay the respondent costs for a standard appeal on a band A basis for steps taken to date together with usual disbursements.

Solicitors:
McKenna King, Hamilton for Respondent

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^[1] New Zealand Bloodstock Finance & Leasing Ltd v Jones [2023] NZHC 3542.

^[2] Prescott v Auckland Council [2017] NZHC 2698 at [7]–[8].

^[3] At [9].

^[4] Tomar v Khatri [2024] NZCA 231 at [2].

^[5] Court of Appeal (Civil) Rules 2005, r 53.

^[6] Trotter v Telfer Electrical Nelson Ltd [2018] NZCA 231, [2019] NZAR 476 at [28]. See also: Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 at [14]; and Chen v Yang [2009] NZCA 458, (2009) 19 PRNZ 810 at [6].