Davey v Bank of New Zealand
[2022] NZCA 517
•2 November 2022 at 11:30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA445/2022 [2022] NZCA 517 |
| BETWEEN | MATTHEW ROBERT DAVEY |
| AND | BANK OF NEW ZEALAND |
| Counsel: | Applicant in person |
Judgment: | 2 November 2022 at 11:30 am |
JUDGMENT OF KATZ J
(Review of Deputy Registrar’s decision)
The application for review of the Deputy Registrar’s decision is declined.
REASONS
The application before the Court
On 30 August 2022 Mr Davey sought to file in the registry of this Court an application seeking leave to appeal three decisions of Associate Judge Paulsen, and an extension of time to appeal those decisions. The three decisions are as follows: a decision declining an application for adjournment of a summary judgment hearing (the adjournment decision);[1] a decision granting summary judgment (the summary judgment decision);[2] and a decision fixing the quantum of costs on the summary judgment application (the costs decision).[3]
[1]Bank of New Zealand v Davey [2021] NZHC 1816 [Adjournment decision].
[2]Bank of New Zealand v Davey [2021] NZHC 1854 [Summary judgment decision].
[3]Bank of New Zealand v Davey [2021] NZHC 2122 [Costs decision].
The Deputy Registrar accepted the application for filing in respect of two of the decisions — the summary judgment decision and the costs decision — as Mr Davey has a direct right of appeal from those decisions under the Senior Courts Act 2016.[4] The Deputy Registrar declined to accept the application in relation to the adjournment decision on the basis that an adjournment decision was interlocutory in nature and Mr Davey was therefore required to apply to the High Court for leave in the first instance under s 56(3) of the Senior Courts Act. The Deputy Registrar was not satisfied that such an application had been made or, if it had, that it had been determined. The Deputy Registrar concluded, therefore, that this Court did not have jurisdiction to accept the application for filing to the extent that it related to the adjournment decision.
[4]Mr Davey has a right of appeal from the Summary judgment decision, above n 2, pursuant to s 56(4)(b) of the Senior Courts Act 2016. Mr Davey also has a right of appeal from the Costs decision, above n 3, pursuant to s 56(1)(a) of the Act. Mr Davey requires an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005, as his notice of appeal was filed out of time.
Mr Davey was not satisfied with the Deputy Registrar’s decision and the Deputy Registrar accordingly referred the matter to the Court for review.[5]
Background
[5]Court of Appeal (Civil) Rules, r 5A(3).
The underlying proceedings are bankruptcy proceedings between Mr Davey and the Bank of New Zealand (BNZ). Mr Davey was the director of a company, Fortress Ltd, which had facilities with BNZ. Mr Davey had provided a personal guarantee in relation to those facilities. BNZ made demand on Fortress on 28 July 2020, and subsequently made demand on Mr Davey pursuant to his personal guarantee on 3 August 2020. Fortress went into receivership and then into liquidation later in 2020.
BNZ obtained summary judgment against Mr Davey, following which it has applied in Australia and New Zealand to have Mr Davey adjudicated bankrupt. The relevant procedural history is set out below.
BNZ’s application for summary judgment
BNZ applied for summary judgment against Mr Davey, seeking $3,851,640 plus interest and costs. The summary judgment application was set down for hearing before Associate Judge Paulsen on 16 July 2021. At the outset of the hearing, Mr Davey applied for an adjournment. The Associate Judge delivered an oral judgment declining that application.[6] The Associate Judge then proceeded to consider BNZ’s application for summary judgment, which he granted (orally) at the conclusion of the hearing. The Associate Judge subsequently delivered a reasons judgment on 21 July 2021 which confirmed that summary judgment had been entered at the hearing on 16 July 2021, and gave reasons for that decision.[7] Subsequently, on 13 August 2021, the Associate Judge issued a costs judgment, fixing the quantum of BNZ’s costs at $62,500 with disbursements of $1,680.56.[8]
[6]Adjournment decision, above n 1.
[7]Summary judgment decision, above n 2, at [1]–[4].
[8]Costs decision, above n 3, at [7].
Mr Davey did not appeal the summary judgment or costs decisions within the timeframe of 20 working days prescribed by the Court of Appeal (Civil) Rules 2005.[9] Nor did he seek leave to appeal the adjournment decision in that period.
Bankruptcy proceedings in New Zealand and Australia
[9]Court of Appeal (Civil) Rules, r 29(1)(a).
BNZ subsequently commenced bankruptcy proceedings against Mr Davey in New Zealand. It has also commenced bankruptcy proceedings in Australia, where Mr Davey resides.
On 27 July 2022, Mr Davey applied to the High Court for a stay of enforcement of the summary judgment decision, on a without notice or Pickwick basis. Urgency was sought on the basis that if a stay was not granted by 5 pm that day, Mr Davey would be bankrupted in the Australian courts. Associate Judge Lester promptly considered the application, on the papers. He observed that it was unsatisfactory that Mr Davey had delayed his application until the eve of the bankruptcy proceedings, in circumstances where Mr Davey had been aware of the need for a stay for an extended period, and the summary judgment decision had not been appealed despite the fact that it had been delivered over a year prior.[10] Furthermore, in the Associate Judge’s view, the stay application lacked merit.[11] The application was accordingly declined in a decision dated 27 July 2022 (the stay decision).
[10]Davey v Bank of New Zealand [2022] NZHC 1822 [Stay decision] at [3] and [6].
[11]At [6].
BNZ’s bankruptcy application in New Zealand was originally set down to be heard on 8 September 2022. However, as recorded in a minute issued on that date, Associate Judge Paulsen adjourned the hearing for a further fixture in late October or early November, given that Mr Davey’s appeal against the summary judgment decision had been accepted for filing in this Court on 30 August 2022.[12] It also appears from the Associate Judge’s minute that, despite Mr Davey’s failure to obtain a stay of enforcement in New Zealand on 27 July 2022 (which was said to be necessary to prevent Mr Davey from being bankrupted in Australia) the bankruptcy proceedings against Mr Davey in Australia have also been adjourned.[13]
The Deputy Registrar’s decision regarding Mr Davey’s applications in this Court
[12]Bank of New Zealand v Davey HC Christchurch CIV-2021-409-409, 8 September 2022 (Minute of Associate Judge Paulsen) at [3] and [8].
[13]At [2].
As noted above, Mr Davey filed an application in this Court on 30 August 2022 seeking leave to appeal and/or an extension of time to do so (if required) in respect of the adjournment decision, the summary judgment decision and the costs decision.
The Deputy Registrar accepted the application for filing to the extent that it related to the summary judgment decision and the costs decision, as both of those decisions are appealable as of right (albeit Mr Davey still requires an extension of time). However, the Deputy Registrar did not accept the application for filing to the extent that it related to the adjournment decision because he considered that the adjournment decision was interlocutory in nature. There is no appeal as of right in respect of interlocutory decisions under the Senior Courts Act. Rather, Mr Davey was required to apply to the High Court for leave to appeal within 20 working days of the decision he sought to appeal.[14] If the High Court refused to grant leave, Mr Davey then had a further right to apply to this Court for leave within 20 working days of the refusal of leave by the High Court.[15] In addition, both the High Court and this Court have jurisdiction to extend the time for such applications, in appropriate cases.[16]
[14]Senior Courts Act, s 56(3).
[15]Section 56(5).
[16]See s 56(3) and Court of Appeal (Civil) Rules, r 29A.
On the information initially available to the Deputy Registrar, it did not appear that Mr Davey had applied to the High Court for leave to appeal the adjournment decision. The Deputy Registrar accordingly declined to accept that aspect of the application for filing. Mr Davey subsequently advised (by emails dated 31 August 2022 and 1 September 2022) that he had sought leave from the High Court to appeal the adjournment decision. He provided several documents in support of that submission. Mr Davey asserted that the application to the High Court for leave to appeal the adjournment decision had been declined.
In the circumstances, the Deputy Registrar’s view was that the appropriate course was to treat Mr Davey’s email correspondence as an application to review his decision not to accept Mr Davey’s application for leave and/or an extension of time to appeal the adjournment decision for filing, and to refer the matter to a judge for review.[17]
Preliminary issue — difference between CIV numbers
[17]Rule 5A(3) of the Court of Appeal (Civil) Rules provides that a Judge may review a decision by the Registrar “on an informal application made by a person affected within 20 working days after the date of the Registrar’s decision”.
The High Court judgments in issue have been delivered under different CIV numbers. The CIV numbers are as follows:
(a)The three judgments Mr Davey seeks to appeal (the adjournment decision, the summary judgment decision, and the costs decision) were issued under CIV‑2021‑409‑46.
(b)The stay decision and Associate Judge Paulsen’s 8 September 2022 minute were issued under CIV‑2021‑409‑409.
In response to a query from the Deputy Registrar, Mr Davey supplied correspondence from his lawyer explaining the position as follows:
(a)Judgments relating to BNZ’s application for summary judgment were issued under CIV-2021-409-46.
(b)CIV-2021-409-409 relates to BNZ’s application to have Mr Davey adjudicated bankrupt.
(c)The stay decision was originally issued under CIV-2021-409-46, however it was subsequently reissued under CIV-2021-409-409 “in relation to the current application for adjudication of bankruptcy currently before the High Court”.
Mr Davey’s lawyer clarified that:
… what happened is that leave to appeal was sought (if required) from the High Court in relation to the Oral Judgment dated 16 July 2021 and the Summary Judgment dated 16 July 2021 and the Costs Judgment dated 13 August 2021 in CIV-2021-409-000046 and a stay of execution/enforcement of the judgments in CIV-2021-409-000046 was sought and a stay of proceedings (i.e: the adjudication application for bankruptcy) in CIV-2021-409-409 was also sought pending any appeal.
In my view nothing turns on the difference between the CIV numbers. As Mr Davey’s lawyer has explained, the different CIV numbers relate to the two sets of proceedings (the summary judgment proceedings on one hand, and the bankruptcy adjudication proceedings on the other). Although the judgment of Associate Judge Lester only includes the CIV number for the bankruptcy adjudication proceedings in the intituling, it is clear from the judgment and from the correspondence from Mr Davey’s lawyer that the Associate Judge also dealt with matters relating to the summary judgment proceedings.
Was the Deputy Registrar correct to decline to accept Mr Davey’s application for filing to the extent that it related to the adjournment decision?
An interlocutory application is relevantly defined in the Senior Courts Act as being an application “for some relief ancillary to that claimed in a pleading”.[18] Here, the adjournment decision is clearly an interlocutory one. Mr Davey does not suggest otherwise. The critical issue, therefore, is whether the High Court has “refused” to grant leave to appeal the adjournment decision in terms of s 56(5) of the Senior Courts Act. If so, Mr Davey has a right to seek leave to appeal (and an extension of time to do so) from this Court. If the High Court has not refused to grant leave, however, then Mr Davey must seek leave in the High Court under s 56(3).
[18]Senior Courts Act, s 4(1) definition of “interlocutory application”, para (a)(ii).
As noted previously, on 27 July 2022 Mr Davey applied to the High Court for a stay of enforcement of BNZ’s summary judgment, and the application was heard and determined on a Pickwick basis. The stay application listed 13 orders that were sought (some of them in the alternative). Those orders included an order granting “[l]eave to appeal and an extension of time (if required)” in relation to the adjournment decision, the summary judgment decision and the costs decision.
Due to the urgency, Associate Judge Lester was not able to deliver a full decision on the stay application, as he expressly recorded in his judgment.[19] The stay decision did not therefore address all the orders sought in the stay application, but focused solely on whether a stay of enforcement should be ordered. That was the critical order required if Mr Davey was to stave off bankruptcy in Australia. The application for leave to appeal the adjournment decision, on the other hand, was clearly not time critical and did not need to be determined urgently. Further, the usual course would be for the judge who delivered the original judgment (Associate Judge Paulsen) to deal with any application for leave to appeal that judgment.
[19]Stay decision, above n 10, at [4].
Although the stay decision refers to a “[j]udgment obtained by the Bank of New Zealand … on 16 July 2021”,[20] it is clear from the context that Associate Judge Lester is referring to Associate Judge Paulsen’s oral decision of 16 July 2021 to grant BNZ’s summary judgment application, not the adjournment decision that immediately preceded that. As noted previously, the written reasons for the summary judgment were delivered on 21 July 2021, but the application itself was granted at the hearing on 16 July 2021.
[20]At [1].
For the reasons outlined, I am satisfied that the High Court has not refused to grant leave to Mr Davey to appeal the adjournment decision. That aspect of Mr Davey’s 22 July 2022 application has not yet been determined. Mr Davey must therefore progress his application for leave to appeal the adjournment decision in the High Court in the first instance. This Court does not have jurisdiction to consider an application for leave to appeal the adjournment decision unless and until the High Court has refused to grant leave.[21]
[21]Senior Courts Act, s 56(3) and 56(5).
The Deputy Registrar was accordingly correct to reject Mr Davey’s application for filing to the extent that it related to the adjournment decision.
Result
The application for review of the Deputy Registrar’s decision is declined.
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