Amanda Adele White v Christopher Maurice Lynch - [2017] NZSC 8

IN THE SUPREME COURT OF NEW ZEALAND

SC 137/2016
[2017] NZSC 8

BETWEEN

AMANDA ADELE WHITE
First Applicant

ANNE LEOLINE EMILY FREEMAN
Second Applicant

AND

CHRISTOPHER MAURICE LYNCH
First Respondent

STUART GORDON SPENCE
Second Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	Applicants in person J S Cooper for Respondents
Judgment:	16 February 2017

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicants seek leave to appeal against a judgment of the Court of Appeal that:[1]
(a)refused their application for an extension of time to file a case on appeal and seek a hearing date;
(b)dismissed their application to prevent Mr Peter Wright acting as counsel for the respondents; and
(c)directed the Registrar of the Court of Appeal not to accept, without the prior written consent of a Judge, any proceedings directed against the respondents or Mr Wright.

The appeal in respect of which an extension was sought was against a judgment of Faire J of 15 December 2015 in which, inter alia, he adjudicated the applicants bankrupt.[2] Although the appeal is against all aspects of the judgment, we will, for reasons which will become apparent, refer to it as the adjudication appeal.

[1]White v Lynch [2016] NZCA 513 (Randerson, Wild and French JJ) [Adjudication appeal].

[2]White v Lynch [2015] NZHC 3202.

The background to the order of adjudication is reviewed fully in the judgment of the Court of Appeal.[3] For present purposes, an abbreviated summary is sufficient. The starting point is a judgment given against the applicants in the High Court by Priestley J.[4] The applicants appealed against that judgment to the Court of Appeal but the appeal was never prosecuted to a hearing.[5] In the course of that appeal costs were awarded against the applicants. This award of costs provided the basis for bankruptcy notices which resulted in the judgment of Faire J which was challenged in the adjudication appeal. The applicants also issued proceedings in the High Court seeking to have the judgment of Priestley J set aside as obtained by fraud but these proceedings were struck out.[6] This strike-out decision was also challenged by an appeal to the Court of Appeal but this appeal too was not prosecuted to substantive hearings.[7] Procedural issues associated with the dispute have been before the Court of Appeal on five occasions.[8]
[3]At [3]–[15].
[4]Spence v Lynch [2013] NZHC 1478.
[5]In White v Spence [2014] NZCA 298, the Court of Appeal granted extensions of time to apply for a fixture and file a case on appeal against the judgment of Priestley J. An extension of time was also granted to appeal against the costs judgment of Priestley J. The Official Assignee later abandoned the appeal: Adjudication appeal, above n 1, at [7].
[6]White v Lynch [2015] NZHC 1020.
[7]Adjudication appeal, above n 1, at [10]–[11].
[8]White v Spence [2014] NZCA 298; White v Lynch [2016] NZCA 78

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 Amanda Adele White v Christopher Maurice Lynch

Details

AGLC: Amanda Adele White v Christopher Maurice Lynch [2017] NZSC 8
Case: [2017] NZSC 8
Decision Date: 16 February 2017

CaseChat Overview and Summary

Amanda Adele White and Anne Leoline Emily Freeman sought leave to appeal against a judgment of the Court of Appeal, which refused their application for an extension of time to file a case on appeal and seek a hearing date. The applicants also sought to prevent Mr Peter Wright acting as counsel for the respondents and directed the Registrar of the Court of Appeal not to accept, without the prior written consent of a Judge, any proceedings directed against the respondents or Mr Wright. The appeal in respect of which an extension was sought was against a judgment of Faire J, who adjudicated the applicants bankrupt. The applicants claimed that Mr Spence did not discover certain material in the course of the litigation, which they claimed to have been relevant, and that he was assisted in suppressing this information by his counsel, Mr Wright.

The legal issues that the court was required to decide were whether the applicants had a point of public or general importance in the proposed appeal and whether there was an appearance of a miscarriage of justice. The court also had to consider whether the applicants' allegations in relation to discovery had been properly assessed by any court.

The court dismissed the application for leave to appeal. It found that the appeal had no merit and that the applicants had not paid security for costs. The court also found that the applicants' submissions in support of their application for leave to appeal contained much assertion and rhetoric but did not engage with the substance of the reasons given by the Court of Appeal. The court saw no point in extending time for an appeal which had no merit and in respect of which the applicants had not paid security for costs. The court made no order for costs because the applicants were bankrupt and the respondents had not sought costs.

Orders