Currie v Goodwin

[2004] NZCA 298

IN THE COURT OF APPEAL OF NEW ZEALAND

CA216/04

BETWEENCOLIN FREDERICK CURRIE

Appellant

ANDMAURICE REED GOODWIN

First Respondent

ANDPETER B SINCLAIR

Second Respondent

Hearing:6 December 2004

Court:Hammond, Wild and Doogue JJ

Counsel:M A Gilbert for Appellant

A C Challis and V S Cress for First Respondent
J C Bassett for Second Respondent

Judgment:6 December 2004 

JUDGMENT OF THE COURT

A        LEAVE TO APPEAL OUT OF TIME IS DECLINED.

BThe appellant will pay costs to the first respondent of $750, together with his reasonable disbursements; and to the second respondent, costs of $2,000 together with his reasonable disbursements.  If counsel cannot settle the disbursements same are to be fixed by the Registrar.

REASONS

(Given by Hammond J)

[1]       We have before us an application for leave to appeal out of time from a decision of Laurenson J given on 22 August 2000 in the High Court at Auckland refusing to grant leave to adduce further evidence and declining an application for non-party discovery (CIV 2002-404-1820).

[2]       Leave to appeal out of time is required because, through error on the part of the solicitor previously acting for the appellant, the appeal was filed one day late.

[3]       The appellant is the liquidator of Wholesale Timber Limited (“WTL”) which was placed in liquidation on 5 March 1997.  The first respondent is the receiver of WTL.  The second respondent had a number of roles with WTL, of a management character.

[4]       The underlying proceeding was issued on 16 August 2002.  The basis of the claim is that the first respondent as receiver and the second respondent as his agent breached obligations to WTL in failing properly to secure the assets of WTL, and to obtain a proper price for them.

[5]       The litigation has had an unfortunate history.  It is not necessary or appropriate on a leave application of this kind to retraverse that history.  It is set out at [4] to [14] of the judgment of Laurenson J to which we have referred.  As recently as 4 August 2004 Lang AJ was able to say “that the proceeding had had an unfortunate history is to state the obvious”.  The Associate Judge noted that there had been numerous delays, and at least two abandoned trial dates, and that the reasons for this could be largely attributed to the failures of the plaintiff to see this claim properly prosecuted, and to comply with entirely appropriate Court orders.

[6]       What was sought before Laurenson J was leave, very late in the piece, to adduce further evidence being a supplementary brief from the appellant and from two other witnesses, who were former employees of WTL.  The evidence which it was sought to advance in this way is said to go to the quantity and quality of the timber which was owned by WTL at the date of the receivership.

[7]       The appellant also sought leave to seek non-party discovery from two banks with respect to the accounts of certain companies associated with the second respondent.  These banking records are said to be relevant to the question of quantum.

[8]       Laurenson J declined to admit a further brief by the plaintiff because to the extent that the brief was a response to evidence adduced by the defendants then the plaintiff could (in any event) give the evidence orally.  The question of the admissibility of certain schedules was deferred for consideration by the trial Judge.

[9]       As to the evidence of the two employees, the Judge appears to have considered that this evidence was procurable “much earlier on”. 

[10]     The Judge also considered that this late endeavour to bring in more evidence was an attempt on the part of the plaintiff to improve its position after a mediation conference when “apparently, the defendants had disclosed what they perceived to be flaws in the plaintiff’s case”.  The parties had been required to file briefs of evidence prior to the mediation conference; the plaintiff has failed to do so; and the Judge thought it to be wrong that the plaintiff could subsequently improve its position in this way.

[11]     As to non-party discovery, the Judge noted the history of that application.  In light thereof he considered it to be “quite unreasonable” for the issue to have been raised at this late stage.  He said that if “there was any real worth in obtaining this discovery from the plaintiff’s point of view, then it should have been apparent more than a year ago”.  He considered it unreasonable to put the 11 October 2004 hearing “at peril at [that] late stage”.

[12]     The application for leave is put on the footing that:

(a)the appeal was filed one day out of time due to solicitor error;

(b)there would be no prejudice or hardship to the respondents if leave is granted;

(c)there is merit in the proposed appeal; and

(d)the overall justice of the case requires that leave be granted.

[13]     Normally, excusable solicitor error of the kind which occurred in this case (and in this instance it was properly explained) would not stand in the way of an application for leave of the character here sought.  However, there are insurmountable obstacles in the way of the applicant.

[14]     Security for costs has not been paid, timeously.  It follows that the appeal is therefore deemed to be abandoned.  Mr Gilbert was not aware of this deficiency until very recently.   This change is fatal to the present application.  Mr Gilbert acknowledged that the only way the matter could now be kept alive would be for his interests to make an application under r 5 of the Court of Appeal Rules.  That would require, in terms of the prior decisions of this Court, that an exceptional case be made out.  In our view, that test could not be met in the present case for reasons we will shortly traverse, and which are also relevant with respect to the originating application, as lodged.

[15]     There is prejudice to the respondents in that this matter will be prolonged, by an appeal, for a further respectable period of time to trial.  And this in a context where the already protracted nature of the proceeding lies at the door of the appellant.  Further, the second respondent is under severe physical and financial disabilities which are in respectable measure due to the way this proceeding has been handled.

[16]     Of greatest significance however is whether, in any event, there is any realistic prospect of success on the appeal.  What is sought to be appealed to this Court are decisions of the High Court Judge in the exercise of his discretion on procedural matters, and which are essentially of a trial character.  It is not enough if this Court might have adopted a different course, or even if the Judge was arguably wrong to have taken the course he did.  It would have to be shown that the Judge was plainly wrong. 

[17]     On the merits, we think the appellant falls well short of that standard.  The considerations which ultimately determined the matter, to Laurenson J’s mind, were all appropriate and relevant considerations.  We can not say that he was plainly wrong.

[18]     As to the broad justice of the case, what is being sought is an indulgence, and that in a context in which the appellant’s behaviour has been spotty, to say the least, in a number of respects.  There has been non-compliance with Court orders; failure to pay costs as ordered; and failure to serve documents as required by the rules.

[19]     In all the circumstances, leave to appeal out of time is declined.  The appellant will pay costs to the first respondent of $750, together with his reasonable disbursements; and to the second respondent, costs of $1,750 together with his reasonable disbursements.  In the event that counsel cannot settle the disbursements same are to be fixed by the Registrar.  The disbursements are to include the travel and accommodation costs of counsel for the second respondent.

Solicitors:
Gilbert/Walker, Auckland for Appellant/Applicant
McElroys, Auckland for First Respondent
Cairns Slane, Auckland for Second Respondent