Bujak v Monasterio and Moya - [2009] NZCA 516

IN THE COURT OF APPEAL OF NEW ZEALAND
CA544/2009
CA545/2009
[2009] NZCA 516
BETWEENSLAWOMIR RYSZARD BUJAK

Appellant

ANDMARCOS ERIK MONASTERIO

First Respondent
ANDMARIA JOSE MARCOS MOYA

Second Respondent

Hearing:20 October 2009

Court:William Young P, Glazebrook and Robertson JJ
Counsel:F C Deliu for Appellant

G E Slevin for Respondents

Judgment:27 October 2009 at 4 pm

JUDGMENT OF THE COURT

A An extension of time for appealing is declined.
B Application for a stay declined.
CMr Bujak is to pay costs on a standard band A basis and usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
[1] Mr Bujak and his wife (Ms Danuta Zalwowska-Spisak) are defendants, and the respondents are the plaintiffs, in civil proceedings in the High Court at Christchurch. Both Mr Bujak and Ms Zalwowska-Spisak are Polish. Mr Bujak is subject to an extradition order which, if executed, will require him to return to Poland. Ms Zalwowska-Spisak is, apparently, currently living in Poland along with a young child of the marriage.
[2] On 4 August 2009 French J:
(a)Made an order for substituted service, under which service on Ms Zalwowska-Spisak may be effected by, inter alia, service on Mr Bujak.
(b)Declined to vary an existing freezing order.
(c)Adjourned for further consideration an application for orders as to disclosure.

[3] On 21 August 2009, French J made further orders in which she required:
(a)Mr Bujak to file and serve an affidavit providing specified information as to particular financial transactions.
(b)Ms Zalwowska-Spisak by her attorney, Mr Bujak, to file and serve an affidavit disclosing other specified financial information.

[4]        Mr Bujak has appealed against the judgments of 4 and 21 August 2009. He was a day late in relation to the judgment of 4 August 2009 and thus requires an extension of time (which is the first of the applications which is before us). He also sought a stay (the second application) and, as well, leave to adduce new evidence on the appeals (the third application). This new evidence relates to the power of attorney which Ms Zalwowska-Spisak executed in favour of Mr Bujak and which was material to the order for substituted service and to the disclosure order made against Ms Zalwowska-Spisak. The evidence is that this power of attorney was revoked on 13 October 2009. The respondents are content for that evidence to be before us (which thus disposes of the third application).
[5]        Mr Bujak is not challenging the decision as to the freezing order or the requirement that he disclose financial information and the respondents no longer seek to uphold the disclosure order in relation to Ms Zalwowska-Spisak; this given her revocation of the power of attorney. So all that is in issue substantively between the parties is a challenge by Mr Bujak to the order for substituted service in relation to his wife.
[6]        If we thought that Mr Bujak had an arguable basis for challenging that order on appeal, we would have extended time for his appeal.
[7]        In the High…

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.

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Details

Case: [2009] NZCA 516
Decision Date: 27 October 2009

CaseChat Overview and Summary

In the appeal cases of CA544/2009 and CA545/2009, Slawomir Ryszard Bujak sought an extension of time for appealing against judgments made in the High Court at Christchurch. The respondents to the appeal, Marcos Erik Monasterio and Maria Jose Marcos Moya, were the plaintiffs in the original proceedings, and Mr Bujak and his wife, Ms Danuta Zalwowska-Spisak, were the defendants. The proceedings involved an extradition order for Mr Bujak and a freezing order, which had been declined to be varied. The appeal primarily focused on the order for substituted service, which allowed service on Ms Zalwowska-Spisak to be effected through Mr Bujak, as well as the disclosure order requiring financial information from both Mr Bujak and Ms Zalwowska-Spisak. Mr Bujak was a day late in appealing the judgment of August 4, 2009, and sought an extension of time for the appeal, a stay, and leave to adduce new evidence relating to the power of attorney executed by Ms Zalwowska-Spisak in favor of Mr Bujak.

The court needed to determine whether Mr Bujak had the right to be heard regarding the substituted service order and whether he had standing to challenge the order on appeal. The court also needed to consider whether the power of attorney's revocation affected Mr Bujak's ability to prosecute the appeal on behalf of Ms Zalwowska-Spisak. Furthermore, the court needed to examine the evidence presented by Mr Bujak, which suggested that Ms Zalwowska-Spisak was not effectively served with the proceedings, despite the order for substituted service.

The Court of Appeal of New Zealand declined to extend the time for appealing and dismissed the application for a stay. The court held that Mr Bujak had no personal right to be heard on the substituted service order, and even if he did, the revocation of the power of attorney meant that he had no right to prosecute an appeal on behalf of Ms Zalwowska-Spisak. The court also found that, given Ms Zalwowska-Spisak's awareness of the proceedings, it was inconceivable that the order for substituted service would be set aside on appeal. The proposed further evidence presented by Mr Bujak did not change the court's conclusions. Consequently, the applications for an extension of time and a stay were declined, and Mr Bujak was ordered to pay the respondents' costs on a standard, band A, basis and usual disbursements.

Orders