Albon v Albon

[2015] NZCA 360

IN THE COURT OF APPEAL OF NEW ZEALAND

CA392/2014
[2015] NZCA 360

BETWEEN	DARCY CHARLES ALBON Appellant
AND	MARK STEPHEN ALBON Respondent

Hearing:	27 July 2015
Court:	Ellen France P, Randerson and Miller JJ
Counsel:	Appellant in person K R Smith for Respondent
Judgment:	7 August 2015 at 4 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for a hearing date and file the case on appeal is granted on the conditions set out in [10] of the reasons of the Court.

BWe make no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Introduction

1. This is an application under r 43(2) of the Court of Appeal (Civil) Rules 2005 for an extension of time to apply for a hearing date and to file a case on appeal.  The application is necessary because, after filing the notice of appeal in time on 25 July 2014, the appellant, Darcy Albon (Darcy), did not take any of the prescribed steps to prosecute the appeal.  Accordingly, on 29 October 2014, the appeal was deemed to be abandoned.  Darcy filed the application for an extension of time on 2 February 2015.  The application is opposed by the respondent, Mark Albon (Mark), Darcy’s brother.

Background

1. Darcy’s appeal is against the judgment of MacKenzie J in which the Judge decided Mark was entitled to removal of a caveat registered by Darcy over a property in the Aro Valley, Wellington.[1]  The property had been owned, as tenant in common, by the parties’ father whose half interest in the property was purchased by Mark after his father died.  The Judge also dismissed Darcy’s counterclaim that Mark held half of the property as constructive trustee for Darcy or, in the alternative, that Mark represented that he was buying the property for them both and was estopped from resiling from that representation.

   [1]Albon v Albon [2014] NZHC 1490.

2. MacKenzie J found Mark’s title to the property was not impressed with a trust.  Nor were the circumstances such that the parties must reasonably be taken to expect that Darcy’s contributions would lead to him having a share in the property.

The application for an extension of time

1. In assessing the application the relevant factors are the length of delay, the reason for delay, the merits of the proposed appeal and Mark’s submission that he is prejudiced by the failure to have this matter resolved.[2]

   [2]Henderson v Official Assignee [2015] NZCA 104 at [19]–[20]; and Schmidt v Ebada Property Investments Ltd [2012] NZCA 452 at [6]–[7].

2. As Mr Smith for Mark submits, the delay in this case goes beyond technical non-compliance.  The application for an extension of time was not filed until some six months after the filing of the notice of appeal and five months after payment of security for costs was due.[3]  However some of the delay is explained, at least in part, by the progress of Darcy’s application for legal aid.  His initial application was unsuccessful[4] and Darcy applied for a reconsideration.  The information we have is that it was not until 20 January 2015 that it was confirmed the application for reconsideration had been declined. 

   [3]The period for Darcy to apply for an extension under r 43(3) is extended by the number of days between 25 December and 15 January, pursuant to r 43(5).

   [4]We understand legal aid was refused on 16 December 2014.

3. Darcy also suggests that a lawyer who was assisting him did not file the application for an extension of time in late 2014 although Darcy had asked him to do so.  On the information we have, it is not possible to determine the accuracy of that assertion but we are, nonetheless, prepared to assess the application for an extension of time on the basis that some of the delay is explained.  That reduces the weight this factor would otherwise have in this case.

4. In terms of the merits of the proposed appeal, there is some force in Mr Smith’s submission that the notice of appeal does not provide much to indicate why it is said that MacKenzie J’s judgment is wrong.  The notice also includes grounds relating to Mark’s responsibilities as executor under the parties’ father’s will which do not appear to have been in issue in the High Court.  That said, on the information we have we cannot say that the proposed appeal is not arguable.  This factor supports the granting of an extension.

5. Finally, Mark says he is prejudiced by further delay.  That is because Darcy continues to occupy the home on the property, preventing Mark from living there in circumstances where Mark has to meet the outgoings on the property.  Darcy disputes Mark’s claims about payment of outgoings and seeks to call in aid an agreement between the parties that he says entitled him to live in a unit attached to the home on the property. 

6. Obviously, we cannot resolve the parties’ differences on this point.  We do give some weight to the fact Mark apparently feels constrained by the fact of the present appeal from pursuing options he may otherwise have in relation to resuming occupation of the property.  But we consider that we can seek to ameliorate any adverse impact on Mark by imposing conditions on Darcy in relation to the conduct of the appeal.

Decision

1. In all the circumstances, we consider the appropriate course to follow is to grant the application and extend the period for filing a case on appeal and applying for a hearing date.  The extension of time is subject to the conditions that, on or before  2 October 2015, Darcy:

   (a)files an amended notice of appeal capturing the grounds he now wishes to advance;

   (b)deals with security for costs and payment of any outstanding Court fees;

   (c)applies for the allocation of a hearing date;

   (d)files a case on appeal; and

   (e)files any application for leave to adduce new evidence.

2. As Darcy represented himself we make no order for costs.

Postscript

1. We add that, on 18 March 2015, Darcy’s application for dispensation of security for costs was received.  The Registrar declined the application on the basis it was out of time, not having been made within 20 working days of the date of refusal of Darcy’s legal aid application.

2. Darcy sought a review of that decision under r 7(2) of the 2005 Rules.  However, as the Registrar indicated in declining Darcy’s application, now that his extension of time has been granted he can make a fresh application for dispensation.  That is what he should do.  We formally decline to review the Registrar’s earlier decision on the basis it is now moot.  The Registrar can consider Darcy’s application afresh.  Darcy will need to promptly file information supporting his application, for example, as to his financial position. 

3. Finally, Darcy indicated he may wish to have the Court consider new evidence on the appeal. If he wants to do so, he will need to file an application for leave to adduce further evidence within the timeframe indicated above at [10]. We suggest Darcy obtain legal advice to assist him in these matters.

Solicitors:
Peter C Gilbert, Wellington for Respondent