Walker G2 Finance Holdings Limited

[2013] NZHC 1082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-1088 [2013] NZHC 1082

BETWEEN  GLENN ANDREW WALKER Appellant

ANDG2 FINANCE HOLDINGS LIMITED Respondent

Hearing:         On the papers

Counsel:         P J Andrew for Appellant

M G Kirkland for Respondent

Judgment:      14 May 2013

JUDGMENT (No 2) OF KEANE J

This judgment was delivered by  on  14 May 2013 at 2.30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Wackrow Williams & Davies, Auckland for Appellant

Kirkland Morrison, Auckland for Respondent

GLENN ANDREW WALKER V G2 FINANCE HOLDINGS LIMITED HC AK CIV 2012-404-1088 [14 May

2013]

[1]      On 13 February 2013 I dismissed Glenn Walker's appeal against a judgment for NZ $111,049.89, given against him in favour of G2 Finance Holdings Limited in the District Court on 7 February 2012; the principal and interest then outstanding on a loan G2FHL made to Mr Walker on 31 March 2007, which matured at the latest on

31 March 2010.

[2]      Mr Walker now seeks leave to appeal my decision to the Court of Appeal. The question of law he seeks to pursue as novel and important, generally as well as to him, is whether I rightly concluded that a lack of identity of parties was fatal to an equitable set-off he claims relying on oppression by G2FHL towards the trustees of his family trust, which holds shares in G2FHL in which he has an interest as a beneficiary.

[3]      G2FHL opposes that application and, relying on my decision, seeks an award of costs in this Court, which Mr Walker opposes at least until after his right to pursue an appeal from my decision has been resolved.

My decision

[4]      In dismissing Mr Walker's appeal I said that he had not in the District Court disputed the debt accruing under the matured loan. He had contended that judgment ought not to be given against him until his two cross-claims were resolved, even though he was unable to advance either in the District Court. Despite that, he then contended and does still, those claims gave him a right of set-off in equity.

[5]      Mr Walker then claimed, as he does still, to be entitled to pursue (i) a claim for unfair dismissal against G2FHL before the Employment Relations Authority, which G2FHL contends can only lie against its associated company Geneva Finance (NZ) Group Limited; (ii) a claim in this Court against the G2FHL shareholders and directors, as an oppressed shareholder, which G2FHL contends can only be pursued by his family trust trustees against the shareholders and directors of its Australian subsidiary G2FL.

[6]      In  my  decision  I  upheld  the  judgment  given  because,  I held,  these  two asserted cross-claims involved distinct transactions or relationships; and in one instance   arguably,   and   in   the   other   certainly,   distinct   parties.   They   were counterclaims, I held, to be pursued independently. They could not impede the entry of judgment on the debt. The Judge, I held, had given Mr Walker all that he could hope for when, at G2FHL's invitation, he stayed the judgment as long as Mr Walker brought his unfair dismissal claim in the Employment Relations Authority within 28 days.

[7]      At the date of the appeal, I held, Mr Walker still had the benefit of that stay because he had brought his unfair dismissal claim within time. But he had not prosecuted it. Nor had the trustees of his family trust brought their foreshadowed claim for oppression as G2FHL shareholders. That claim remained notional.

Leave principles

[8]      A decision of this Court, on an appeal from the District Court, is final unless this Court grants leave to appeal to the Court of Appeal, or the Court of Appeal grants such leave itself.[1]

[1] Property (Relationships) Act 1976, s 39A(1), Judicature Act 1908, s 67(1), (2).

[9]      To qualify for leave, the Court of Appeal said in Waller v Hider,[2] 'the appeal must raise some question of law or fact 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 the further appeal'. For as the Court then said:[3]

It  is  not  every  alleged  error  of  law  that  is  of  such  importance,  either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[2] Waller v Hider [1998] 1 NZLR 412, 413.

[3] At 413.

[10]     In Snee v Snee[4] the Court of Appeal emphasised the stringency of this test. Its primary function on appeal, it again emphasised, is to decide whether the law has been 'properly construed and applied'. Its function is not just to correct error. It is to

clarify the law. Only seriously arguable and significant issues lie within its province.

Unarguable question

[4] Snee v Snee CA198/99, 1 November 1999 at [22].

[11]     I accept immediately that the question Mr Walker seeks to pursue on a second appeal is of the first importance to him. He is at risk of bankruptcy and that question may be no less relevant to a claim against him in this Court, brought by G2FHL's associated company, Geneva. The sum in issue in the two cases together, he says, is likely to exceed $250,000.

[12]     I am less convinced that the question whether the proposed oppression claim could qualify as an equitable set-off is novel. The law as to cross-claims, and when such  claims  can  amount  to  a  set-off,  is  well  settled.  But  that  is  academic.  Mr Walker's family trust trustees have yet to bring their claim in this Court. Whatever merit it might have, and G2FHL contends that it has none, it remains notional.

[13]     Mr Walker says that the claim has not been brought because his application for legal aid has still to be resolved definitively. But that was so when I heard his appeal in October 2012, and his failure to prosecute his unfair dismissal claim, which is before the Employment Relations Authority, is equally discouraging.

Conclusion

[14]     I see no alternative but to hold to be moot Mr Walker's proposed question on appeal and to decline his application for leave to appeal to the Court of Appeal. G2FHL is entitled, as I have already said, to scale 2B costs on the appeal, and I allow the claim it has made, except as to second counsel. G2FHL is awarded $12,405

costs, and disbursements as fixed by the Registrar.

P.J. Keane J