Davidson v Halloran-Davidson - [2020] NZHC 1342

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-595

[2020] NZHC 1342

UNDER Part 9 of the District Courts Act 2016

IN THE MATTER

Of an appeal against an order for summary judgment

BETWEEN

BEAU FLETCHER DAVIDSON

First Appellant

JOY HALLORAN-DAVIDSON
Second Appellant

AND

SANDRA JOY BOWATER

Respondent

Hearing:
21 May 2020

(by telephone)

Appearances:

C G Smith for the Appellants

J T Burley and K O’Halloran for the Respondent

Further submissions received:

26 May 2020

Judgment:

16 June 2020

JUDGMENT OF POWELL J

[Application to extend time for filing appeal]

This judgment was delivered by me on 16 June 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DAVIDSON v BOWATER [2020] NZHC 1342 [16 June 2020]

[1] The appellants, Beau Davidson and Joy Halloran-Davidson, have applied for an extension of time to appeal a decision of Judge Harrison in the District Court at North Shore.1 Judge Harrison granted summary judgment in favour of the respondent, Sandra Bowater, finding the appellants had no arguable defence to Ms Bowater’s claim she had loaned them personally sums totalling $55,000 and these sums had not been repaid.

[2] The present appeal is in fact the second appeal brought by the appellants. The first was commenced in time, and although advancing towards a hearing on 31 March 2020, was determined by me on 19 March 2020 to have been struck out with effect from 19 November 2019, after security for costs were not paid as directed.

[3] In support of the application to extend time, Ms Smith on behalf of the appellants relies primarily upon r 20.13(6) of the High Court Rules 2016 which provides that a Judge must defer the fixing of security for costs on appeal if an appellant has applied for legal aid and the application has not been determined. In Ms Smith’s submission I erred in ordering security for costs on the first appeal and that as the appellants had promptly filed an application for an extension of time on the second appeal there was no prejudice for the extension to now be given.

[4] In addition Ms Smith submitted that there were clearly arguable appeal points, noting in particular that Judge Harrison had declined to receive further evidence prior to the hearing that would have supported the appellants’ contention that Ms Bowater had loaned the monies to a company called HTE Investments Ltd rather than to the appellants personally.

[5] In response, Mr Burley, for Ms Bowater, suggested that as the initial appeal had been dismissed there was no basis to extend time on the present appeal, that even if the payment of security could not have been directed the subsequent dismissal of the appellants’ application for legal aid meant that the security was payable at the time the appeal was dismissed. Mr Burley’s major focus was however on the merits of the appeal. In particular, Mr Burley noted that legal…

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 Davidson v Halloran-Davidson

Details

AGLC: Davidson v Halloran-Davidson [2020] NZHC 1342
Case: [2020] NZHC 1342
Decision Date: 16 June 2020

CaseChat Overview and Summary

The applicants, Beau Fletcher Davidson and Joy Halloran-Davidson, sought an extension of time to appeal a summary judgment granted to Sandra Joy Bowater in the District Court. Judge Harrison had ruled in favour of Ms Bowater, finding that the appellants had no arguable defence to Ms Bowater's claim that she had loaned them personally sums totalling $55,000 which had not been repaid. The current appeal is the second appeal brought by the appellants, the first having been struck out for non-payment of security for costs. The applicants relied on r 20.13(6) of the High Court Rules 2016, which provides that a Judge must defer the fixing of security for costs on appeal if an appellant has applied for legal aid and the application has not been determined. Ms Smith, counsel for the applicants, argued that the initial appeal should not have been struck out and the delay in bringing the present appeal was not excessive, and that there was no real prejudice to Ms Bowater. In contrast, Mr Burley, counsel for Ms Bowater, argued that the initial appeal had been properly dismissed and the subsequent appeal had no merit.

The court considered the principles applicable to the granting of leave to extend time for bringing an appeal, noting that the overall test was whether granting an extension would 'meet the overall interests of justice'. The court found that the initial appeal should not have been struck out and the delay in bringing the present appeal was not excessive. The court was satisfied there was no real prejudice to Ms Bowater and that the merits of the appeal were not relevant in this case. The court granted the application to extend time for filing the appeal, noting that it was anticipated that the appeal could be set down for hearing with minimal delay. The court also reserved costs on both the initial appeal and on the present application pending determination of the substantive outcome of the present appeal.

Orders