Banora v Auckland Council
[2022] NZHC 2691
•18 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-000418
[2022] NZHC 2691
UNDER Rule 20.4 of the High Court Rules 2016 BETWEEN
ALEXANDER BANORA AND EMANUELLA BANORA
Applicants
AND
AUCKLAND COUNCIL
Respondent
Hearing: 29 September 2022 Appearances:
The applicants in person assisted by their son W M C Randal for the Respondent
Judgment:
18 October 2022
JUDGMENT OF POWELL J
[Application to extend time for appeals]
This judgment was delivered by me on 18 October 2022 at 3.30 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors/Counsel:
DLA Piper, Auckland
Copy:
A and E Banora
BANORA v AUCKLAND COUNCIL [2022] NZHC 2691 [18 October 2022]
[1] The applicants, Alexander Banora and Emanuella Banora, have filed an application for special leave to appeal a judgment given by Judge A A Sinclair (“the substantive decision”).1
[2] The substantive decision relates to civil proceedings brought by Mr and Mrs Banora in the District Court against the Auckland Council (“the Council”) alleging various acts of trespass, nuisance, negligence and negligent misstatement. Those proceedings formed part of a wider dispute between Mr and Mrs Banora and the Council involving a rental property situated at 82 Wolverton Street, Avondale which Mr and Mrs Banora purchased in 2006.2 In the substantive judgment Judge Sinclair dismissed Mr and Mrs Banora’s civil claims against the Council, and allowed a counterclaim brought by the Council against Mr Banora in the sum of $106,950.
[3] Mr and Mrs Banora also seek special leave to appeal Judge Sinclair’s two costs judgments (“costs decision” and “supplementary costs decision”) against Mr and Mrs Banora,3 as well as a minute issued by Judge Sinclair confirming those costs awards (“costs minute”).4 The costs minute summarised the costs found to be owing as follows:5
(a)Costs and disbursements on the unsuccessful claim made by Mr and Mrs Banora were awarded against Mr and Mrs Banora in favour of the Council in the total sum of $72,100.43;
1 Banora v Auckland Council [2019] NZDC 5184.
2 Other proceedings involving the property have included enforcement proceedings brought by the Council under the Resource Management Act 1991 and prosecutions under the Building Act 2004.
3 Banora v Auckland Council [2019] NZDC 8359; Banora v Auckland Council [2019] NZDC 10122.
4 Banora v Auckland Council DC Auckland CIV-2015-092-2699; CIV-2016-092-0218; CIV-2016- 092-0219; CIV-2016-092-0936, 16 October 2019.
5 The costs decision awarded costs in favour of the Council against Mr Banora of $77,519.00 together with disbursements (which were not challenged) of $9,654.93, a total of $87,173.93. Counsel subsequently filed a joint memorandum agreeing that the costs should be awarded against Mrs Banora in the total sum of $71,289.00 together with disbursements of $811.43, a total of
$72,100.43. The supplementary costs decision ordered Mrs Banora to pay costs and disbursements as agreed and confirmed that these costs and disbursements were owed jointly by Mr and Mrs Banora on their failed claim. The costs minute confirmed that only Mr Banora was liable for costs on the counterclaim.
(b)Additional costs and disbursements on the counterclaim were awarded in favour of the Council against Mr Banora in the sum of $15,073.50 with no costs being payable by Mrs Banora on the counterclaim.
(c)The total amount of the costs awarded against Mr Banora and payable by him to the Council was therefore $87,173.93.
[4] In respect of each decision, special leave to appeal is required because Mr and Mrs Banora are between two years and four months and almost three years out of time to appeal as of right,6 the decisions in issue having been made between 21 March 2019 and 16 October 2019.
[5]The leave application is opposed by the Council.
[6] The applicable principles are well settled, as set out by the Supreme Court in Almond v Read.7 The ultimate question in considering the exercise of the discretion to extend time is what the interests of justice require.8 That necessitates an assessment of the particular circumstances of the case. Factors which are likely to require consideration include:9
(a)The length of the delay;
(b)The reasons for the delay;
(c)The conduct of the parties, particularly of the applicant;
6 Any appeal of the decisions and minute would be brought pursuant to the general right of appeal to the High Court provided for in s 124 of the District Court Act 2016. While s 124 provides a right of appeal it does not specify the period within which an appeal must be brought. Rule 20.4(2)(b) of the High Court Rules 2016 (“the HCR”) applies. That rule provides that an appeal must be brought within 20 working days after the decision appealed against is given. The dates of the decisions and minute are: 21 March, 8 May, 30 May and 16 October 2019. Leave to appeal was applied for on 4 March 2022. Any appeal of the decisions and minute is therefore well beyond the 20 working day appeal period and special leave is required pursuant to r 20.4.
7 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
8 At [38].
9 At [38].
(d)Any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)The significance of the issues raised by the proposed appeal, both to the parties and more generally.
[7] The Supreme Court accepted that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time, but there are three qualifications to this principle:10
(a)Where the merits or otherwise of a proposed appeal will be overwhelmed by other factors (such as the length of the delay and the extent of the prejudice to the respondent or others) and so will not require consideration;
(b)The merits will not generally be relevant where there has been an insignificant delay as a result of a legal adviser’s error and the proposed respondents have suffered no prejudice; and
(c)Consideration of the merits of an appeal in the context of an application to extend time must necessarily be relatively superficial. The Court should firmly discourage much argument on the merits and should reach a view about them only where they are obviously very strong or very weak. A decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. The lack of merit must be readily apparent.
The case for Mr and Mrs Banora
[8] The focus of Mr and Mrs Banora’s submissions in support of their application are the merits of the intended appeals. As a result, their submissions contained extensive detail about a wide range of technical issues at the property, the defects in
10 At [39].
the Council’s evidence presented at the District Court and errors in the District Court decision (“a terrible decision”). Mr and Mrs Banora did however also address the reasons for the delay in seeking to file their appeals, although not all of these can be reconciled with each other. In particular they argued:
(a)Judge Sinclair “kept the final judgment open until 16 October 2019”;
(b)during that seven-month period they did not know about the 20-day time limit for filing an appeal;
(c)there was no time to appeal Judge Sinclair’s decision within the 20-day limit “especially because [they] did not have a lawyer any more”;
(d)they hoped to get justice from a Judge in the Environment Court and the judgment of Judge Sinclair had to be fought in front of a Judge of the Environment Court;
(e)they had already started on 28 November 2019 to apply for leave to appeal out of time. However, they had to stop because they were “too busy seeking some justice” from a Judge in the Environment Court. They were exhausted physically, mentally, financially and emotionally; and
(f)they consider the time limit for appealing is six years.
[9] These reasons were the focus of the hearing before me. At the hearing Mr and Mrs Banora also acknowledged a further reason. This had been detailed in the submissions and evidence filed on behalf of the Council and confirmed:
(a)after a period of negotiation, on 26 August 2020 the costs awarded in the costs decision and the supplementary costs decision were resolved between the parties by Mr and Mrs Banora paying a lump sum of
$60,000 to the Council;
(b)also at that date, agreement had been reached between Mr Banora and the Council as to remediation work to be undertaken by Mr Banora that would satisfy the judgment that had been entered against Mr Banora on the Council’s counterclaim;
(c)the substance of the agreement was that Mr Banora would continue to undertake remediation work on the assets that were the subject of the counterclaim;
(d)Mr Banora would provide monthly updates to the Council on progress in carrying out the remediation work; and
(e)if the remediation work was not carried out within a reasonable time, the Council would be able to seek payment of the counterclaim judgment sum of $106,950.
[10] The Council’s position is that by October 2020 it had not received any update from Mr Banora on progress with the remediation work. When Council officers inspected the property on 22 January 2021 they noted that the remediation work had not progressed as required. Finally, on 23 February 2022 the Council wrote to Mr and Mrs Banora explaining that as the remediation work had not satisfactorily progressed, the Council no longer consented to Mr Banora undertaking the work and it now sought payment of the counterclaim sum. In those circumstances it appears Mr and Mrs Banora’s motivation to appeal has arisen as a result of the Council indicating its intention to enforce payment of the counterclaim judgment.
Discussion
[11] Having considered the issue carefully, I conclude that it is not appropriate for leave to be given to enable the proposed appeal to proceed. Ultimately, I am satisfied that none of the discretionary factors identified above favour a grant of leave.
[12] First, the delay in seeking to appeal can only be described as extreme.11 In its discussion regarding delay, the Supreme Court in Almond v Read stated that the longer the delay, the more the applicant will be seeking an “indulgence from the Court and the stronger the case for an extension will need to be”.12 Likewise if the delay arises from a change of mind, or from indecision, there is less justification for an extension than where the delay results from error or inadvertence, particularly if understandable.13 Finally, the Court said that where there is significant delay coupled with significant prejudice then it may well be appropriate to refuse leave even though the appeal appears to be strongly arguable.14
[13] The Banora’s interlocutory application is dated 4 March 2022. The delay in filing the application is therefore almost three years in relation to the substantive decision and just over two years and four months in relation to the costs minute.
[14] This is not a case where there has been a slip or error which has resulted in the appeal date having been inadvertently missed. On the contrary it is clear that Mr and Mrs Banora remained legally represented as at the date of all of the decisions they now seek to appeal apart from the costs minute, having confirmed in the hearing that their former lawyer remained involved until August 2019, and noting he had been involved in negotiations in costs following the substantive decision.
[15] Given that position, it is impossible to place weight on Mr and Mrs Banora’s statement that they thought the Judge kept the final judgment open until 16 October 2019 or that they considered the appeal period to be six years. The latter statement in particular is inconsistent with their statement that by 28 November 2019 they had started on their application for leave to file an appeal out of time.
[16] Instead, I accept the submission by Mr Randal that Mr and Mrs Banora made a deliberate decision not to proceed with an appeal of the decisions and minute during
11 In Dorrance v Peters [2020] NZHC 1168 at [12] it was held that a delay of 52 working days was significant.
12 Almond v Read, above n 7, at [38(a)].
13 At [38(b)].
14 At [38(d)].
the relevant appeal periods, evidenced by the agreement reached with Council with regard to costs and remediation.
[17] That agreement indeed demonstrates that as at 26 August 2020, Mr and Mrs Banora considered that the litigation was at an end: costs issues had been resolved; there was agreement as to how the remediation work would be carried out; and if the remediation work did not progress in a satisfactory way then it was open to the Council to recover the sum awarded in the substantive judgment.
[18] Mr and Mrs Banora confirmed at the hearing that this was indeed their understanding and they have revised their position only because Mr Banora was unable to complete the remediation, for which he blames the Council, and the Council in consequence is seeking to enforce the counterclaim.
[19] It follows, as Mr Randal submitted, that if leave is granted to allow the appeals to proceed there would be prejudice to the Council in at least three ways. First, based on the expiry of the appeal period, Mr and Mrs Banora’s conduct and the lengthy period that has elapsed since the end of the appeal periods, the Council was entitled to believe that the litigation was at an end and there is inherent prejudice to the Council if that is not now the case. Second, prejudice arises if the full and final settlement of costs issues is to be reopened. Third, any appeal will further delay the Council from taking steps to obtain payment of the counterclaim judgment sum of $106,950 from Mr Banora.
[20] It is clear from Mr and Mrs Banora’s submissions and the emotive language employed in those submissions that they feel deeply about the issues in this case. Mr Randal drew to the Court’s attention observations made by Judge Thompson in his judgment in the Environment Court. Those observations reflect the personal significance of the issues in this proceeding to Mr Banora. Judge Thompson said:15
[28]The history of, and the decisions given in, the disputes and issues between Mr Banora and the Auckland Council around this property makes sad reading. Mr Banora has seemingly been quite unable to accept that those who have been engaged to advise and assist him have acted professionally; that the Council simply, and rightly, wishes the
15 Banora v Auckland Council [2019] NZEnvC 198 at [28]–[29].
land and the works on it to be “put right”; and that the Courts – society’s mechanism for resolving disputes objectively and according to law – have considered the facts and merits of the situation as put to them and made rulings according to the relevant law.
[29]It is regrettable that Mr Banora cannot accept that, but there is a time when the positions of other parties, and the bringing to finality of such a long-standing issue, must been [sic] given proper priority over his inability to accept that he has no demonstrable facts, fairness or merit on his side.
[21] On the other hand, the issues are clearly also important to the Council. As Megan Armistead, the principal solicitor for the Council who gave evidence on the application noted, the damage that resulted in the counterclaim judgment has resulted in a public walkway being closed for six years and the failure by Mr Banora to undertake remediation means that this will continue unless the Council undertakes the work itself.
[22] Finally, I conclude that this case falls into the category identified by the Supreme Court in which the merits or otherwise of the proposed appeal is overwhelmed by the length of the delay and the extent of prejudice to the respondent.
The merits, therefore, do not require consideration.16
[23] For completeness I note the prospective grounds of appeal are in any event extremely difficult to follow, and it is certainly not possible to consider the proposed grounds of appeal as in any way strong. The issues identified include: Judge Sinclair’s refusal to accept Mr Banora’s “essay about 52 lies” of one of the main Council witnesses that Mr Banora filed after the hearing but before judgment was given; Judge Sinclair’s failure to recognise multiple fraudulent documents submitted to the Court on behalf of the Council; an allegation that the annexures of the affidavit of the main witness were revealed to Mr Banora only on the first hearing day and that made it impossible for Mr and Mrs Banora to discover the numerous fraudulent photographs and documents; allegations that the evidence of Council witnesses was sent to Mr and Mrs Banora only a few days before the first hearing day, again making it difficult for Mr and Mrs Banora to discover the “numerous frauds”; allegations that Judge Sinclair twisted the words in Mr Banora’s evidence; allegations that the amount of the
16 Almond v Read, above n 7, at [39(a)].
counterclaim sum was exaggerated, the costs amounts ordered moved up and down and finally “unjustly and with secrecy” returned to almost the original amount; allegations their former lawyer together with the Council redacted Mr Banora’s PowerPoint presentation negatively; and finally, allegations Mr and Mrs Banora’s documents and a Council document got put together in a common bundle and that it has taken until 4 March 2022 for Mr and Mrs Banora to discover the numerous fraudulent documents and lies of the Council.
[24] With regard to these issues, I observe that while Mr and Mrs Banora may genuinely believe that there were fraudulent documents submitted to the Court and the evidence of the Council’s witnesses contained lies, Mr and Mrs Banora were legally represented at the hearing and their lawyer cross-examined the Council witnesses. There is nothing in the substantive decision that suggests the Judge had any concerns about the veracity or credibility of the evidence of the Council witnesses. As to the common bundle, it appears that it was compiled by counsel for Mr and Mrs Banora. Some of the redactions complained about in Mr and Mrs Banora’s PowerPoint have been included in Mr and Mrs Banora’s submissions in this Court and on the face of it were indeed properly redacted.17
[25] I also note Judge Sinclair set out the reasons supporting the sum awarded on the counterclaim and the evidence relied on in the substantive decision.18
[26] Finally, neither of the costs judgments nor the costs minute are challenged directly. The various costs decisions were simply a determination of costs on a category 2B basis in accordance with the District Court Rules 2014. I understand they were appealed so as to ensure they could be reversed in the event that the appeal against the substantive decision was successful.
17 An example which, in my view, counsel for Mr and Mrs Banora properly redacted from the PowerPoint is a statement that “AC (ie Auckland Council and TnT) think that the manipulated sky view gives the five evil tricks legitimacy. They are just liars”.
18 Banora v Auckland Council, above n 1, at [150]–[154].
Decision
[27] For all the reasons set out above the interests of justice do not favour granting the application by Mr and Mrs Banora for special leave to extend the time to file an appeal against the decisions and the minute. The application is dismissed.
[28] The Council is entitled to costs on a category 2B basis. The Council is to file and serve a memorandum setting out the claimed scheduled costs within 10 working days of the date of this judgment. If Mr and Mrs Banora wish to challenge any of the particular items claimed, they may do so by a memorandum to be filed and served within a further 10 working days of the date of service of the Council’s memorandum on them. The Council may file and serve a reply within five working days.
[29] All submissions on costs are limited to three pages. I will then determine costs on the papers.
Powell J
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