Carver v Jack - [2010] NZCA 184

IN THE COURT OF APPEAL OF NEW ZEALAND
CA268/2009
[2010] NZCA 184
BETWEENSHIRLEY-ANNE CARVER

First Applicant
ANDGARRY DESMOND STEWART

Second Applicant
ANDSHIRLEY-ANNE CARVER, GARRY DESMOND STEWART AND HAYDN ASH AS TRUSTEES OF THE WHITIORA TRUST

Third Applicants

ANDNEIL CLARENCE JACK

First Respondent
ANDNEIL CLARENCE JACK AND ALAN ROBERT JACK AS TRUSTEES OF THE JACK FAMILY TRUST

Second Respondents

Hearing:20 April 2010

Court:William Young P, O'Regan and Arnold JJ
Counsel:No appearance for Applicants

S P Bryers for Respondents

Judgment:14 May 2010 at 10 am

JUDGMENT OF THE COURT

AThe application for an adjournment of the hearing of the application for an extension of time is declined.
BThe application for an extension of time within which to file the Case on Appeal and apply for a fixture is declined.
CThe appeal is deemed abandoned under r 43 of the Court of Appeal (Civil) Rules 2005.
DThe applicants must pay the respondents costs for a standard application on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by Arnold J)
[1] On 11 May 2009, the applicants lodged an appeal against a decision of Woodhouse J granting summary judgment:
(a)to the first respondent against the first and second applicants in the sum of $981,853.35;
(b)to the first respondent against the third applicants in the sum of $159,665; and
(c)to the second respondent against the first and second applicants in the sum of $38,290.82,

in each case, with interest and costs.[1] In addition, the Judge declined the applicants’ application to discharge a freezing order granted on an ex parte application by the respondents.
[1]      Jack v Carver HC Auckland CIV 2008-404-5610, 14 April 2009.
[2]        The applicants paid security for costs on the appeal in the amount of $4,740. However, the six month period under r 43 of the Court of Appeal (Civil) Rules 2005 for filing the case on appeal and applying for a fixture expired on 11 November 2009. On 30 November 2009, the applicants filed an application for an extension of time to take these steps.
[3]        This application was set down to be heard in the Miscellaneous Motions list on 20 April 2010. There was no appearance for the applicants, although Ms Carver filed an application for an adjournment of the hearing. This was opposed by Mr Bryers for the respondents. On 29 April 2010, Ms Carver filed a memorandum explaining why there was no appearance for the applicants at the hearing. She explained that as a result of a health crisis on the part of the second applicant and two mortgagee sales which disrupted their telephone and facsimile communications, she had not received relevant communications from the Court until after 20 April 2010.
[4]        We decline the application for an adjournment. As Mr Bryers submitted, this is not the first time that this type of situation has occurred. Moreover, Ms Carver has filed a good deal of material in support of the application for an extension of time and we consider that we can fairly…

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.

Continue reading Carver v Jack

Details

AGLC: Carver v Jack [2010] NZCA 184
Case: [2010] NZCA 184
Decision Date: 14 May 2010

CaseChat Overview and Summary

In Carver v Jack, the applicants sought an extension of time to file their appeal against a judgment for substantial amounts of money and interest, as well as costs. The applicants had been unsuccessful in obtaining legal aid and were declared bankrupt, which affected their ability to engage legal counsel. The appeal period had lapsed, and the applicants sought an adjournment and extension of time to file their appeal. The court considered the application and the reasons provided for the delay, which included the bankruptcy of the applicants and their inability to pay legal fees.

The legal issues before the court were whether to grant an adjournment of the hearing and an extension of time for the applicants to file their appeal. The court considered the reasons for the delay, the prospects of success of the appeal, and whether the appeal was genuinely arguable. The court also considered whether the applicants had acted diligently in attempting to engage legal representation.

The court declined to grant an adjournment and dismissed the application for an extension of time. The court found that the applicants' explanation for the delay was not compelling, and that they had had sufficient time to arrange legal representation or seek legal aid. The court also considered that the Official Assignee had refused consent for the applicants to continue with the appeal, on the ground that he considered the appeal was without merit. The court found that the appeal had little prospect of success and that the grounds for appeal were unconvincing. The appeal was therefore deemed abandoned under the Court of Appeal (Civil) Rules 2005.

The court ordered that the applicants pay the respondents' costs for a standard application on a band A basis and usual disbursements. The court found that the applicants' explanation for the delay was not sufficient to warrant an extension of time, and that the appeal was unlikely to succeed. The court also considered the Official Assignee's refusal to grant consent for the applicants to continue with the appeal, which indicated that the appeal was without merit. The court's decision was based on a careful consideration of the applicants' reasons for the delay, the prospects of success of the appeal, and the merits of the appeal.

Orders