Boswell v Millar

[2013] NZCA 519

IN THE COURT OF APPEAL OF NEW ZEALAND

CA293/2013
[2013] NZCA 519

BETWEEN	KATHRYN FRANCES BOSWELL Appellant
AND	OWEN ROSS MILLAR Respondent

Hearing:	7 October 2013
Court:	Randerson, Harrison and French JJ
Counsel:	Appellant in person D S Quinn for Respondent
Judgment:	24 October 2013 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.

BThe application for a stay is granted.  Execution of the costs order made in the High Court is stayed until:

(a)31 March 2014; or

(b)the final disposal of the appeal; or

(c)the sale of either the farm property or the home property;

whichever of the three events happens first.

CThe granting of the stay is conditional on Ms Boswell preparing and filing the Case on Appeal and applying for a hearing date by 7 November 2013.

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REASONS OF THE COURT

(Given by French J)

Introduction

1. Ms Boswell wishes to appeal a decision of Katz J made in the High Court.  In the decision, Katz J dismissed a damages claim brought by Ms Boswell against Mr Millar in contract.[1]  Justice Katz also subsequently ordered Ms Boswell to pay Mr Millar costs of $33,830.[2]

Background

[1]Boswell v Millar [2013] NZHC 703.

[2]     Boswell v Millar [2013] NZHC 1583.

1. Ms Boswell filed her notice of appeal on 7 May 2013.  She failed to file a Case on Appeal and apply for a hearing date within three months of that date.  Accordingly, under r 43 of the Court of Appeal (Civil) Rules 2005, the appeal was deemed to be abandoned.  The reason Ms Boswell failed to take those steps in time was that she was relying on a letter which the Court had sent her.  The letter wrongly advised that the relevant time period was six months.

2. Ms Boswell accordingly now applies for an extension of time.  The application is opposed on the grounds that Ms Boswell should have known the correct position and that the appeal lacks merit.  In our view however, regardless of the merits, it would be unjust to deny the application in circumstances where it is the Court that is responsible for the mistake.  It was reasonable of Ms Boswell to rely on the letter.  We note too that the respondent’s assessment of the merits is at least partly based on an erroneous view of this Court’s ability to interfere with findings of fact.

3. The application for an extension of time is accordingly granted.

4. Ms Boswell also applies for a stay of Katz J’s costs order pending the appeal, having already applied unsuccessfully to the High Court for a stay.  Ms Boswell says she is unable to pay the costs.  She owns two properties, one a farm that has been on the market for several years (the farm property) and the other a 22 acre property on which she lives (the home property).  Both properties are mortgaged.  There is some equity in the properties.  Ms Boswell is currently employed as a teacher but it is a temporary position that will finish at the end of this year.  She is unlikely to obtain a new teaching position.  She currently uses her salary to service the mortgages and any income from the farm is consumed by payment of outgoings, including rates.  She has no other source of income.

5. On the other hand, the appeal would not be rendered nugatory by the lack of a stay.  Mr Millar would be in a position to repay the money if Ms Boswell wins her appeal.  Further, Mr Millar is elderly and not in good health.

6. During the course of the hearing, we raised the possibility of granting a stay for a limited period of time.  We suggested that the stay could remain in place until 31 March 2014, or until final disposal of the appeal, or the sale of either of the two properties, whichever of those three specified events occurs first.  Both parties were receptive to this suggestion.  Ms Boswell also undertook to expedite the appeal.

7. We therefore grant a stay of the costs order until such time as one of those three specified events first occurs.  The effect of that order is that the longest possible time the stay will remain in place is until 31 March 2014.

8. Ms Boswell represented herself.  There is therefore no issue as to costs.

Result

1. The application for an extension of time is granted.

2. The application for a stay is granted.  Execution of the costs order made in the High Court is stayed until:

   (a)31 March 2014; or

   (b)the final disposal of the appeal; or

   (c)the sale of either the farm property or the home property;

whichever of the three events happens first.

1. The granting of the stay is conditional on Ms Boswell preparing and filing the Case on Appeal and applying for a hearing date by 7 November 2013.

Solicitors:
Chatwin Legal Ltd, Hamilton for Respondent