Creser v Creser - [2004] NZCA 211

IN THE COURT OF APPEAL OF NEW ZEALAND
CA110/04
BETWEENRICHARD JOHN CRESER

Applicant

ANDJANINE MICHELLE CRESER

Respondent

Hearing:17 August 2004

Coram:McGrath J
Hammond J
Chambers J
Appearances: Applicant in Person

R Chapman for Respondent
P R W Chisnall for Official Assignee

Judgment:2 September 2004

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Application for special leave to appeal
[1]       Richard Creser applies for special leave to appeal under r 6(3) of the Court of Appeal (Civil) Rules 1997. The decision he wishes to appeal against is a decision of Associate Judge Gendall delivered on 8 March 2004 adjudicating Mr Creser bankrupt. Mr Creser filed a notice of appeal on 15 March. But he failed to give security for the respondent’s costs in this court. As a consequence, by virtue of r 11(3) his notice of appeal is treated as having been abandoned. Now that the appeal period has expired, Mr Creser may pursue his proposed appeal only if this court grants special leave.
[2]       The test to be applied in circumstances such as these is well established. This court held in Air Work (NZ) Limited v Vertical Flight Management [1999] 1 NZLR 29 at 31 that the power to grant special leave under r 5 following a deemed abandonment is unlikely to be exercised “save in exceptional circumstances”, an approach further approved by this court in State Insurance Limited v Brooker (2001) 15 PRNZ 493 at [8]. Ultimately the test is whether granting leave would meet the overall interests of justice (B Bullock and Co Ltd v Matthews (1998) 13 PRNZ 505 (CA)) but it must always be remembered that an important “interest of justice” is the interest in finality of litigation.
[3]       An applicant for special leave must always demonstrate a satisfactory explanation for the delay and an arguable appeal point. Normally this court considers those matters in that order. In this case, we can go immediately to consider the merits of the proposed appeal, as we are satisfied it has no merit. The court should never grant an indulgence in circumstances where a proposed appeal which cannot be brought as of right is unmeritorious.
Merits of the proposed appeal
[4]        Before the merits of the appeal can be discussed, several background facts need to be stated. Last year, Mr Creser commenced a proceeding against his sister, Janine Creser, the current respondent. Ms Creser had been named as an executor in the will of her mother, Jessie Creser. Mr Creser wanted to stop Ms Creser from taking out probate of that will. His proceeding was heard by Gendall J, who on 2 September last year delivered his decision. He found against Mr Creser. He ordered Mr Creser to pay costs to Ms Creser in the sum of $5,843.50.
[5]        Mr Creser sought to appeal from Gendall J’s judgment. In the end, some matters were resolved by consent, but not all. Mr Creser continued with his application for leave to appeal on the unresolved matters, which included costs. This…

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 Creser v Creser

Details

AGLC: Creser v Creser [2004] NZCA 211
Case: [2004] NZCA 211
Decision Date: 2 September 2004

CaseChat Overview and Summary

In Creser v Creser, the Court of Appeal of New Zealand considered an application for special leave to appeal from an adjudication of bankruptcy made by Associate Judge Gendall. Richard Creser, the applicant, sought to appeal against the decision which found him bankrupt. This appeal arose from an earlier proceeding where Creser attempted to prevent his sister, Janine Creser, from taking out probate on their mother's will. The legal issues involved whether Creser had a satisfactory explanation for the delay in filing the appeal and whether the appeal had any merit. The court held that Creser's application for leave to appeal was unmeritorious as he sought to challenge the costs orders that led to his bankruptcy, which were already final. Furthermore, Creser's explanations for the delay in pursuing the appeal were inadequate.

The Court of Appeal determined that granting special leave would not serve the interests of justice, particularly given the importance of finality in litigation. The court found no arguable grounds for appeal and concluded that Creser's application for leave should be dismissed. As Creser was already adjudged bankrupt, the court made no order as to costs. The court's decision underscores the importance of timely and meritorious appeals and the significant weight given to the finality of litigation outcomes.

Orders