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 address it.

[5]        The applicants’ explanation for the failure to comply with the time limit in r 43 is that they were unable to engage counsel due to their inability to pay their fees.  Both Ms Carver and Mr Stewart have been employed, but both were declared bankrupt in December 2009.

[6]        The approach to applications for an extension of time under r 43 was discussed by this Court in Harris v Davies:[2]

Once an appellant has allowed r 43 to be triggered, he or she is then in a position where, instead of being able to appeal as of right, he or she “requires the exercise by this Court of a positive discretion”: Russell v Commissioner of Inland Revenue (2006) 22 NZTC 19,807 at [10] (CA).  Before exercising that discretion, this court is always interested in the reason why the appeal has not been prosecuted diligently.  Another relevant factor, as stated in Russell, is “whether the proposed appeal is genuinely arguable”.  Appeals as of right can be brought regardless of merits, but once an appellant needs leave to continue, this court will generally grant such leave only if the appeal seems meritorious.

[2]      Harris v Davies [2007] NZCA 358 at [8].

[7]        We consider that the application should be dismissed, for three reasons.

[8]        First, the applicants’ explanation for their failure to comply with the time limit is not compelling.  The applicants have had plenty of time to arrange legal representation, or to seek legal aid if they were eligible.  If they have been unsuccessful to date, it is difficult to see how that position will change if they were to be granted an extension.

[9]        Second, now that Ms Carver and Mr Stewart have been declared bankrupt, they need the consent of the Official Assignee to continue with the appeal.[3]  The Official Assignee has refused consent, on the ground that he considers that the appeal is without merit.

[3]      Insolvency Act 2006, s 101.

[10]       Third, having considered Woodhouse J’s judgment we find it difficult to see that the appeal has any prospect of success.  The judgment was entered on the basis of loan documentation that was plain on its face.  The applicants offered little justification for their failure to meet their obligations and the grounds on which it is alleged that the Judge erred are unconvincing.

[11]       Accordingly we decline the application for an extension of time.  The appeal is accordingly treated as abandoned by operation of r 43.  The respondents are entitled to costs for a standard application on a band A basis and usual disbursements.