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

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

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.
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

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].
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]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Albon v Albon

Details

AGLC: Albon v Albon [2015] NZCA 360
Case: [2015] NZCA 360
Decision Date: 7 August 2015 at 4 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Darcy Charles Albon appealed against a judgment of MacKenzie J, which decided that Mark Stephen Albon was entitled to removal of a caveat registered by Darcy over a property in the Aro Valley, Wellington. The property had been owned by the parties' father, and Mark had purchased his father's half interest after his death. The Court of Appeal granted Darcy's application for an extension of time to apply for a hearing date and file a case on appeal, on conditions. The application was necessary because Darcy did not take any steps to prosecute the appeal after filing the notice of appeal in time, resulting in the appeal being deemed abandoned. The Court considered the relevant factors for granting an extension of time, including the length of delay, the reason for delay, the merits of the proposed appeal, and the prejudice to Mark if the appeal were not resolved. The Court found that some of the delay was explained by Darcy's unsuccessful application for legal aid and that the proposed appeal was arguable. The Court granted the application and extended the period for filing a case on appeal and applying for a hearing date, subject to conditions.

The Court of Appeal assessed the application for an extension of time by considering the relevant factors set out in Henderson v Official Assignee. The Court found that the delay in this case went beyond technical non-compliance, as Darcy did not file the application for an extension of time until six months after filing the notice of appeal and five months after payment of security for costs was due. However, some of the delay was explained by the progress of Darcy's application for legal aid, and the Court was prepared to assess the application on the basis that some of the delay was explained. The Court also considered the merits of the proposed appeal and found that there was some force in Mark's submission that the notice of appeal did not provide much to indicate why MacKenzie J's judgment was wrong. However, the Court could not say that the proposed appeal was not arguable on the information available. The Court gave some weight to the fact that Mark felt constrained by the fact of the present appeal from pursuing options he may otherwise have in relation to resuming occupation of the property, but considered that it could seek to ameliorate any adverse impact on Mark by imposing conditions on Darcy in relation to the conduct of the appeal.

The Court of Appeal granted Darcy's application for an extension of time and extended the period for filing a case on appeal and applying for a hearing date, subject to conditions. The Court imposed conditions on Darcy, including filing an amended notice of appeal capturing the grounds he now wishes to advance, dealing with security for costs and payment of any outstanding Court fees, applying for the allocation of a hearing date, filing a case on appeal, and filing any application for leave to adduce new evidence. The Court declined to make an order for costs as Darcy represented himself. The Court suggested that Darcy obtain legal advice to assist him in meeting the conditions and in filing any application for leave to adduce further evidence within the timeframe indicated above. The Court also declined to review the Registrar's earlier decision on Darcy's application for dispensation of security for costs, as it was now moot.

Orders