Ali v Nicol

[2024] NZCA 241

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA649/2023
 [2024] NZCA 241

BETWEEN	BRETT ALI Applicant
AND	PERCIVAL ARTHUR BRIAN NICOL Respondent

Court:	Goddard and Palmer JJ
Counsel:	Applicant in person D A Cowan and J E G San Diego for the Respondent
Judgment:  (On the papers)	19 June 2024 at 11am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is declined.

BThe applicant must pay the respondent costs for a standard application on a band A basis, with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

1. On 20 September 2022, on the application of the respondent, Mr Nicol, Tahana J made orders cancelling a lease between him and the applicant, Mr Brett Ali, and granting other relief against Mr Ali.[1]  Mr Ali appealed against the High Court Judgment within the 20-working day period prescribed in the Court of Appeal (Civil) Rules 2005 (the Rules).  However, the appeal was deemed abandoned.  He now applies for an extension of time to appeal. 

What happened?

[1]Nicol v Ali [2022] NZHC 2414.

1. On 1 August 2007, Mr Nicol entered into a lease with himself to enable him to sell the leasehold over a property in Manurewa, Auckland.  The lessee was to pay rent of $5,000 per year and the Auckland Council property rates.  By a sale and purchase agreement dated 6 February 2008, Mr Nicol sold the leasehold to Mr Ali for $49,000.  Mr Ali made some rates payments but, by June 2020, $12,109.80 remained unpaid. 

2. Auckland Council issued proceedings against Mr Nicol for payment.  Mr Nicol paid the outstanding rates.  On 11 April 2022, Mr Nicol applied to the High Court to recover the rates from Mr Ali, recover increased rent from 1 August 2021 that was unpaid, cancel the lease, and regain possession of the Property.  Mr Ali submitted that he stopped paying rates because he was dissatisfied with the Council’s poor stormwater infrastructure and that his low income should entitle him to rates relief from the Auckland Council.  In a judgment of 20 September 2022, Tahana J granted the application for cancellation of the lease, recovery of the unpaid rates, and possession to be returned to Mr Nicol.  She held the rent review did not comply with the lease so Mr Ali was not liable for that.[2]  On 15 December 2022, she awarded costs against Mr Ali, which remain unpaid.[3]

   [2]At [42].

   [3]Nicol v Ali [2022] NZHC 3438 at [8].

3. Mr Ali had 20 working days to file his appeal.  This period expired on 21 October 2022.  On 31 October 2023, more than a year later, he applied for an extension of time to file an appeal under r 29A of the Rules.

Submissions

1. Mr Ali makes a variety of submissions that are irrelevant to the issue we have to decide.  He points to serious illnesses, not being computer literate, thinking he was within time, being dramatically arrested on unrelated serious charges, and being overwhelmed by case material before the hearing.  He clearly disputes Tahana J’s judgment.  But the legal grounds on which he does so are not clear.

2. Mr Cowan, for Mr Nicol, submits that the appeal is substantially out of time with no explanation, the proposed appeal is clearly without merit, and it would not be in the interests of justice to grant the application.

Should an extension be granted?

1. In Almond v Read the Supreme Court summarised the principles guiding the discretion to grant or decline an extension of time to appeal under r 29A of the Rules.[4]  The ultimate question is what the interests of justice require in the particular circumstances of the case.[5]  Relevant considerations are likely to include the length of the delay, the reasons for the delay, the conduct of the parties, any prejudice or hardship, and the significance of the issues raised by the proposed appeal, to both the parties and more generally.[6]  The merits of a proposed appeal may be relevant but with the caveats that they will sometimes be overwhelmed by other factors, will not generally be relevant where there has been an insignificant delay, and an extension should only be refused for lack of merit where the appeal is clearly hopeless.[7]

   [4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].

   [5]At [38].

   [6]At [38].

   [7]At [39].

2. All of these factors weigh against Mr Ali’s application.  The delay was more than a year.  It is unexplained, given that the dramatic arrest was already some five months after the deadline expired and it is unclear how any of the other factors identified by Mr Ali contributed to the delay.  There is no apparent merit to the proposed appeal and no more general significance to it.  All of this occurs in the context of a situation where Mr Ali has avoided his lease obligations for some time.

Result

1. The application is declined.

2. Costs should follow the event in the usual way.  Mr Ali must pay costs to Mr Nicol for a standard application on a band A basis, with usual disbursements. 

Solicitors

Cowan Law, Auckland for Respondent