Goertzen v All Traffic Management Services Limited [2016] NZHC 3117 (16 December 2016)

Last Updated: 10 January 2017

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2015-454-68 [2016] NZHC 3117

IN THE MATTER OF	an appeal under s 72 of the District Courts Act 1947
BETWEEN	JASON GOERTZEN AND LINDA OSBORNE Appellants
AND	ALL TRAFFIC MANAGEMENT SERVICES LIMITED AND HAIMONA LEEF Respondents

Hearing:	On the papers
Counsel:	PSJ Withnall for Appellants M Freeman for Respondent
Judgment:	16 December 2016

_{JUDGMENT OF ELLIS J}

_{I direct that the delivery time of this judgment is}

_{4 pm on the 16}^th _{day of December 2016}

GOERTZEN v ALL TRAFFIC MANAGEMENT SERVICES LIMITED [2016] NZHC 3117 [16 December

2016]

[1] In my decision dated 14 September 2016¹ I allowed an appeal by the Jason Goertzen and Linda Osborne Family Trust (the Trust) from a decision of the late Judge Atkins QC in which he had held that a lease entered into between the Trust and All Traffic Management Services (ATMS) had been surrendered by operation of law.² ATMS now seeks leave to appeal my decision to the Court of Appeal under s 67 of the Judicature Act 1908.

District Court and High Court decisions

[2] In the District Court, the Judge found that:

(a) there was a verbal agreement between Mr Leef (of ATMS) and

Mr Goertzen that the lease was surrendered;

(b) by permitting Mr Goertzen’s company, Levin Bobcats Ltd, to remain on or return to the leased premises the Trust acted inconsistently with the continuation of the lease; and

(c) the failure to issue timely rent invoices and a subsequent attempt to generate “false” ones supported the conclusion that there had been an implied surrender of the lease.

[3] On appeal, I held that these three matters did not amount to the unequivocal conduct required to establish surrender by operation of law. This was principally because:

(a) the fact that Levin Bobcats continued their occupation of the whole premises was not antithetical to ATMS’ rights because it was merely a continuation of the status quo, and ATMS could have easily been accommodated;

(b) Mr Goertzen’s apparently relaxed response to Mr Leef’s advice that

_{he did not wish to take up the lease (“sweet as”) carried little weight}

¹ _{Goertzen v All Traffic Management Services Ltd [2016] NZHC 2162.}

² Goertzen v All Traffic Management Services Ltd [2015] NZDC 4163.

because it occurred in the context of a discussion about other matters and it was unlikely that he would happily forgo three years rent, particularly given his trustee’s duties; and

(c) the failure immediately to demand rent needed to be understood in the context of the parties’ ongoing relationship and the “give and take” between them.

Should leave to appeal be granted?

[4] The principles governing leave under s 67 of the Judicature Act are well- established. Thus:³

(a) appeals are restricted because of the limited resources of the Court of

Appeal;

(b) there must be some public or private interest of sufficient importance raised by the proposed appeal in order to outweigh the cost and delay of a further appeal;

(c) not every alleged error will qualify;

(d) it is harder to establish the requisite importance in relation to questions which are entirely or largely factual; a second appeal is not concerned with general error correction, but with clarifying the law and determining whether it has been properly construed and applied.

[5] Further:

(a) the correctness of a decision is not by and of itself relevant to determining whether leave should be granted;⁴

³ Waller v Hider [1997] NZCA 221; [1998] 1 NZLR 412 (CA) at 413; Snee v Snee [1999] NZCA 252; [2000] NZFLR 120 (CA) at

_125-126.

⁴ Gregory v Gollan HC Auckland CIV-2005-404-3485, 4 July 2007 at [7].

(b) the interest required to justify a grant of leave must be more than the direct interest of the applicant in pursuing the appeal;⁵ and

(c) it is not sufficient that there have been different results in the District Court and High Court, if the case is not otherwise of general importance.⁶

[6] The application for leave to appeal by ATMS sets out a number of grounds upon which leave should be granted, including that:

(a) my decision involved a complete reversal of the District Court decision; and

(b) the appeal raises or constitutes a matter of general public interest and public importance because the Court of Appeal has not considered the doctrine of surrender by operation of law since 1990.

[7] As noted at [5](c) above the first of these points does not, without more, warrant the grant of leave. Nor, in my view, does the second: there was no dispute as to the relevant principles, and the law is well settled. No specific legal error in that regard has been alleged or identified. The case was always going to turn principally on the Court’s view of the facts.

[8] The other matters advanced as justifying leave focus on the view I took of, and the weight I accorded to, various factual matters. These are said nonetheless to constitute errors of law falling within the second Edwards v Bairstow category.⁷

Although five such errors are identified in the application for leave the submissions filed on behalf of ATMS focuses on only two, namely:

(a) my view that the fact that Levin Bobcats resumed occupation of the premises and continued to operate commercially was not an act

_{inconsistent with continuation of the lease; and}

⁵ _{Arnold v Livestock Traders International Pty Ltd CA105/98, 10 December 1998 at 8.}

⁶ _{At 8.}

⁷ Edwards v Bairstow [1955] UKHL 3; [1956] AC 14 (HL).

(b) my view that Mr Goertzen’s “sweet as” comment did not constitute a verbal agreement that the lease had been surrendered.

[9] As regards the former, Counsel submits that unlike in Oastler v Henderson,⁸ the occupation was not incidental or for a short period of time, but the entire premises for the duration of the tenancy. It is said there was no factual basis for the determination that Levin Bobcats was only occupying the premises on the basis that ATMS’ tenancy could have been easily and quickly accommodated if necessary.

[10] As regards the latter, Mr Freeman submits that in determining that “no store” could be placed in the “sweet as” comment, I went further than drawing inferences from unchallenged facts, and essentially reweighed the evidence, which (it is said) was outside the scope of the appeal.

[11] As I have said, on a second appeal the Court of Appeal is not engaged in general error correction. While I appreciate that ATMS does have a monetary ($116,000) interest in the overall result which flowed from my analysis I do not consider it is of sufficient moment to warrant the grant of leave. Moreover, the relationship between the parties is not ongoing. And the need for finality is underscored by the fact that the dispute dates back to 2010.

[12] As regards Edwards v Bairstow, ATMS’ contention is that certain of the inferences I drew are not supported by (and are contrary to) the primary facts, as found in the District Court. If that is so then, conceptually, the inference drawn may qualify as an error of law. But I agree with Mr Withnall that this submission begs the essential question. That is because even if the error alleged would qualify as a question of law on an Edwards approach that does not mean it is a question of the necessary import to justify the grant of leave. It is difficult to see how the correctness of inferences drawn from facts which are, by definition, particular to the specific case could meet the leave threshold.

[13] As well, it needs to be remembered that my decision did not stand or fall on the inferences to which objection is now taken. The inferences merely fed into my

⁸ Oastler v Henderson [1877] 2 QBD 575 (CA).

answer to what I said was the overarching and critical question, namely whether, viewed objectively, the lessor’s conduct was consistent only with a surrender of the lease.

Result

[14] In my view the threshold for the grant of leave to appeal is not met for the reasons I have given. The application for leave is declined accordingly.

“Rebecca Ellis J”

Solicitors: Paul Withnall, Barrister, Wellington for Appellants

Thomas Dewar Sziranyi Letts, Lower Hutt for Respondents