Buckley v Tea Custodians (Bluestone) Limited

[2009] NZCA 317

IN THE COURT OF APPEAL OF NEW ZEALAND

CA87/2009
[2009] NZCA 317

BETWEENDAVID PAUL BUCKLEY

Applicant

ANDTEA CUSTODIANS (BLUESTONE) LIMITED

Respondent

Hearing:21 July 2009

Court:Hammond, Robertson and Baragwanath JJ

Counsel:No appearances

Judgment:21 July 2009 

ORAL JUDGMENT OF THE COURT

A        The application for leave to appeal is declined. 

BThe applicant is ordered to pay costs to the respondent for a standard application on a band A basis, and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]       When this matter was called in the Miscellaneous Motions list, there was no appearance from the applicant.  Mr Wood, for the respondent, had filed written submissions and relied upon those.

[2]       On 19 December 2008, Venning J, in the High Court at Auckland, ordered the applicant, David Paul Buckley, and Eastview Construction (Albany) Limited (“Eastview”) jointly and severally to pay to the respondent the sum of $3,540,492.78 together with interest of $86,804.04 and costs of $7,227.14.

[3]       An order was also made that Eastview vacate and deliver up possession of a property at 7 Wades Road, Whitford, being the land contained and described in Certificate of Title NA 109D/485 (North Auckland Registry) by 8 January 2009.

[4]       On 27 February 2009, Venning J heard an application for a stay of the execution of that judgment pending the hearing of an appeal.  That judgment notes:

[2]       . . .  Mr Buckley clarified at the outset of the hearing that he does not seek to challenge the entry of the monetary judgment but seeks a stay of the order requiring Eastview as landowner to vacate and deliver up possession.

[5]       On 20 February 2009, Mr Buckley had filed an application for leave for an extension of time for appealing to the Court of Appeal.  The application was necessary because the notification of appeal occurred three days outside the twenty working days prescribed in the Court of Appeal (Civil) Rules 2005 (r 14).  Mr Buckley indicated that he thought the appeal period ran from the sealing of the order, not from the date of its making.

[6]       As to the substance of his proposed appeal, Mr Buckley stated in his notice:

The specific grounds of my appeal are my wife who has an interest in the property the subject of the decisions as Lessee was not given the opportunity to be heard or served with the proceedings.  The Plaintiff was aware of her Lease.

[7]       The Court has heard nothing further from Mr Buckley. The only submissions received have been those from Mr Wood.

[8]       Mr Wood has advised that the property in Wades Road has been vacated by Eastview as required under the order.  The vacation of the property is the single matter which Mr Buckley told Venning J was of concern to him.  It has now been resolved.

[9]       In any event, there is no substance in Mr Buckley’s single ground of appeal.  We are satisfied that summary judgment was properly entered against both Mr Buckley and the company and that the application for a stay was properly declined.  The application was filed three days late but it is not the critical factor.  Leave will not be granted, even where as here the time delay is minimal, if the proposed appeal lacks any merit: Machirus v Commissioner of Inland Revenue (2007) 23 NZTC 21,634 at [9] (CA).

[10]     The application for leave to appeal is declined. 

[11]     Mr Buckley is ordered to pay costs to the respondent for a standard application on a band A basis, and usual disbursements.