Fifer Residential Limited v Noyce - [2016] NZCA 88

IN THE COURT OF APPEAL OF NEW ZEALAND

CA543/2015
[2016] NZCA 88

BETWEEN	FIFER RESIDENTIAL LIMITED, COMPARK PROPERTIES LIMITED AND PAUL GRAEME ALEXANDER Applicants
AND	DIGBY JOHN NOYCE AS LIQUIDATOR OF PARNELL PROPERTY INVESTMENTS LIMITED (IN LIQUIDATION) AND AS LIQUIDATOR OF ST STEPHENS INVESTMENTS LIMITED (IN LIQUIDATION) First Respondent
PARNELL PROPERTY INVESTMENTS LIMITED Second Respondent
ST STEPHENS INVESTMENTS LIMITED Third Respondent
PARNELL STORAGE AND PARKING LIMITED Fourth Respondent
SECOND GENERATION LIMITED Fifth Respondent
BANK OF NEW ZEALAND LIMITED Sixth Respondent

Hearing:	14 March 2016
Court:	Harrison, Wild and French JJ
Counsel:	C A Murphy for Applicants H L Thompson for First Respondent Z G Kennedy for Sixth Respondent No appearance for Second, Third, Fourth and Fifth Respondents
Judgment:	24 March 2016 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 to apply for a hearing date and file the case on appeal is declined.
BThe applicant must pay costs to the first and sixth respondents as for a standard application for leave to appeal on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

On 24 September 2015 Mr Alexander filed a notice of appeal against a decision of Woodhouse J given in the High Court at Auckland.[1]
[1]Noyce v Parnell Property Investments Ltd [2015] NZHC 2037. Although Fifer Residential Ltd and Compark Properties Ltd are named as applicants, Mr Alexander took an assignment of their interests in the proceeding in or around December 2014.
Under r 43(1) of the Court of Appeal (Civil) Rules 2005 Mr Alexander was required to file and serve the case on appeal and apply for a fixture on or before 24 December 2015. He failed to do so and in order to keep the appeal alive must now obtain an extension of time under r 43(2).
The application for an extension of time is opposed by the first respondent, Mr Noyce, and the sixth respondent, the Bank of New Zealand (BNZ).

Reasons for the delay

The explanation for the delay is twofold: first, the Court’s letter about the 24 December 2015 deadline was delivered to Mr Alexander’s old postal address for service (he having failed to notify the Court of the new address) and, second, because of the way Mr Alexander had compiled the documents in the High Court when he was self-represented, the task of compiling the case on appeal requires particular care.[2]

Is the appeal genuinely arguable?

[2]At the time of his application, Mr Alexander was self-represented. He has since engaged counsel.

Mr Noyce is the liquidator of two companies under the indirect control of Mr Alexander that were involved in a failed property venture. BNZ had loaned monies to the two companies. The companies defaulted on the loans. There was a mortgagee sale and BNZ filed a proof of debt representing the outstanding balance of loan monies it claimed was still owing.
Mr Noyce applied to…

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.

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Details

Case: [2016] NZCA 88
Decision Date: 24 March 2016 at 3.30 pm

CaseChat Overview and Summary

The case of Fifer Residential Limited, Compark Properties Limited, and Paul Graeme Alexander (collectively, the applicants) against Digby John Noyce as liquidator of Parnell Property Investments Limited and St Stephens Investments Limited (collectively, the respondents), along with Parnell Storage and Parking Limited, Second Generation Limited, and the Bank of New Zealand Limited, involves an appeal against a decision of the High Court. The applicants seek an extension of time to appeal the decision, which was dismissed by the High Court. The Court of Appeal considers the application for the extension, with opposition from Mr Noyce and the Bank of New Zealand.

The primary legal issue before the Court of Appeal was whether to grant the applicants an extension of time to file their appeal against the High Court decision. The applicants argued that the delay was due to an oversight in notifying the Court of their new address and the complexity of compiling the case on appeal. The Court also considered whether the appeal had any realistic prospect of success. The respondents opposed the extension, arguing that the appeal was not genuinely arguable and would cause unnecessary delay and expense.

The Court of Appeal found that the appeal was not genuinely arguable, as it sought to re-litigate findings of fact that were not determinative of the outcome. The Court noted that the High Court's decision was based on the reasonableness of the liquidator's decisions, rather than the merits of the applicants' claims. Furthermore, the Court found that the applicants had not presented any new evidence that could have led to a different outcome. The Court also noted that the appeal would needlessly delay the finalisation of the liquidations, which had already reduced the funds available for distribution to creditors. As a result, the Court declined the application for an extension of time and dismissed the appeal.

The final orders of the Court of Appeal are that the application for an extension of time is declined, the appeal is deemed to be abandoned, and the applicants are ordered to pay costs to the first and sixth respondents as for a standard application for leave to appeal on a band A basis with usual disbursements.

Orders