Butcher v Finnigan - [2012] NZCA 250

IN THE COURT OF APPEAL OF NEW ZEALAND

CA133/2012
[2012] NZCA 250

BETWEEN CARL DAVID GEORGE BUTCHER
Appellant

AND PERI FINNIGAN AND ROY HORROCKS
Respondents

CA252/2012

AND BETWEEN CARL DAVID GEORGE BUTCHER
Appellant

AND PERI FINNIGAN AND MCDONALD VAGUE
Respondents

Hearing: 12 June 2012

Court: Glazebrook, Randerson and Wild JJ

Appearances: Appellant in person
K Rowe for Respondents in both appeals
(both by telephone)

Judgment: 15 June 2012 at 11 am

JUDGMENT OF THE COURT

AThe appellant’s 12 March 2012 application in CA133/2012 for an extension of time to appeal is dismissed.

BThe appellant’s 13 April 2012 application in CA252/2012 for a stay pending appeal is dismissed.

CThe appellant is to pay the respondents’ costs for a standard application on a band A basis increased by 50 per cent with usual disbursements for each of the two applications.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Mr Butcher makes two applications:
(a)In CA133/2012, an application dated 12 March 2012 for an extension of time to appeal part only (paragraphs [9], [16] and [17]) of a decision given by Associate Judge Bell on 22 February 2011 in the High Court[1] (we will call this ‘the first application’).
(b)In CA252/2012, an application dated 13 April 2012 for a stay pending appeal of the decision of Associate Judge Bell given on 28 March 2012 in the High Court[2] (the second application).
[1] Butcher v Bennett and Hoyle HC Auckland CIV-2010-488-630, 22 February 2011.
[2] Finnigan and Horrocks v Butcher HC Auckland CIV-2011-488-301, 28 March 2012.
The respondents to CA133/2012 are the liquidators of Dragon Flyte Farm Ltd (in liquidation) (the Company). The two applications are made in fraught litigation, the nub of which is a challenge by Mr Butcher to the respondent liquidators’ decision to claim a farm property at 590 Trounson Park Road, Dargaville as the Company’s property. Although the farm property is registered in the Company’s name, Mr Butcher maintains that he and his wife are the beneficial owners, or at least have a major beneficial interest. We need not go into the basis for that claim. Mr Butcher also claims that the liquidators have seized other property owned by him personally, including his car.
We deal first with the first application made by Mr Butcher. In the 22 February 2011 decision that Mr Butcher seeks to appeal, Associate Judge Bell appointed new liquidators and (to avoid any doubt or misunderstanding) also made a fresh order placing the Company into liquidation. The decision records that those orders were made with Mr Butcher’s agreement. Mr Butcher had taken exception to the first appointed liquidators. We note that neither of the Associate Judge’s orders appears in any of the three paragraphs that Mr Butcher seeks to appeal.
The first application is made pursuant to r 29A of the Court of Appeal (Civil) Rules 2005. The considerations on a r 29A application are well established. The first is the length of the delay and the reasons for it. The delay here is approximately…

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: [2012] NZCA 250
Decision Date: 15 June 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with two applications from Carl David George Butcher, who sought an extension of time to appeal a decision and a stay pending appeal. The respondents were Peri Finnigan and Roy Horrocks, liquidators of Dragon Flyte Farm Ltd, and McDonald Vague. The central issue was the ownership of a farm property at 590 Trounson Park Road, Dargaville, which was registered in the name of the Company but claimed by Butcher as his own. The Court had to determine whether the applications for an extension of time and a stay pending appeal were justified, considering the delay, the merits of the appeal, and the potential prejudice to the respondents.

In addressing the first application, the Court considered the length of the delay and the reasons provided by Butcher. He cited personal challenges, including being the solo father of four children, as the reason for the delay. However, the Court noted that Butcher only applied for legal aid on 23 February 2012 and did not provide a satisfactory explanation for the delay in seeking legal aid and pursuing the appeal. The Court also considered the extent of prejudice caused by the delay, which was significant as the liquidation had been ongoing for over a year. Furthermore, the merits of the appeal were found to be lacking, as Butcher sought to appeal orders to which he had consented, including the appointment of the current liquidators. The Court dismissed the first application as it was misconceived and meritless.

Regarding the second application, the Court found it moot and pointless as it was an appeal against the Associate Judge’s decision to proceed with the hearing of the applications. The Court had already ruled on the matter and delivered its judgment on 27 April 2012, which Butcher had appealed on 10 May 2012. The Court dismissed the second application on the grounds that it was now moot and lacked merit.

In conclusion, the Court dismissed both applications made by Butcher and ordered him to pay the liquidators' costs for the standard application on a band A basis, increased by 50 per cent, with usual disbursements, for each of the two applications.

Orders