Glen Eden Holdings v Yvonne Betty Taua

[2003] NZCA 33

IN THE COURT OF APPEAL OF NEW ZEALAND

CA219/02
CA235/02

BETWEENGLEN EDEN HOLDINGS LIMITED

Applicant

ANDYVONNE BETTY TAUA

First Respondent

ANDMOSES TAUA

Second Respondent

Hearing:17 February 2003

Coram:Gault P
Keith J
McGrath J

Appearances:  N W Woods for Applicant

G E Phipps for First and Second Respondents

Judgment:17 February 2003 

Reasons:4 March 2003

REASONS FOR JUDGMENT OF THE COURT
DELIVERED BY GAULT P

[1]       Glen Eden Holdings Ltd applied for special leave to appeal out of time against two judgments of the High Court delivered respectively on 21 March 2002 and 30 August 2002 in the same proceeding.

[2]       The proceeding was brought by Mrs Taua seeking an order for removal of a caveat over the title to her house property registered by Glen Eden claiming an interest under an unregistered mortgage.  Glen Eden claimed that moneys remained owing under a loan agreement supporting the caveat.  Paterson J held that the contract was “oppressive” as defined in s9 Credit Contracts Act 1981.  He ordered that the contract be re-opened and varied the terms by extinguishing a part of the debt representing the excess amount of a brokerage fee and reducing the interest rate to 20% per annum.  The Judge ordered also that the caveat should remain until the loan, as varied, was repaid.  Because the contract had been re-opened, he declined to allow costs of enforcement.  He expressed his tentative view that costs should lie where they fall but invited memoranda if the parties disagreed.  On 26 March Mrs Taua tendered the sum owing according to the judgment ($7,192.49) on the basis that acceptance would settle all matters including costs.

[3]       By the solicitors Glen Eden filed a notice of appeal on 17 April 2002.  Mrs Taua’s cheque was returned unbanked on 10 May.

[4]       Glen Eden did not give security for costs on the appeal within 14 days as required by r11 Court of Appeal (Civil) Rules 1997.  It appears this was not done because Glen Eden, by its solicitors, unsuccessfully sought a waiver of the security requirement.  Once it became clear that there was no ground justifying waiver, Glen Eden took no further step and was notified by the Court Registry on 10 June 2002 that the appeal was deemed to be abandoned under r11(3) which reads:

If security is not given in accordance with this rule, the notice of appeal of application for special leave to appeal is to be treated as having been abandoned;  but a fresh notice of appeal may be given if rule 5 can be and is complied with.

[5]       In the meantime, by memorandum, the solicitors for Glen Eden sought from Paterson J an order that Mrs Taua pay full solicitor/client indemnity costs on the basis of a contractual provision even though the Judge had said he would not give effect to the contractual provision relating to costs of enforcement.  In a ruling delivered on 30 August 2002 the Judge confirmed his earlier indication that costs should lie where they fall.

[6]       An order was sealed on 10 September 2002 in respect of both the substantive judgment of 21 March and the costs ruling of 30 August.

[7]       On 13 September the solicitors for Glen Eden wrote to the Registrar of this Court enclosing a notice of appeal purporting to appeal against both the judgment of 21 March and the costs ruling of 30 August.  No fee was paid.  The Registrar was asked to apply the fee paid on the earlier abandoned appeal to the new appeal(s).  Security for costs was not given until 22 October so that if the notices lodged without fee were to be treated as notices of appeal, they too would be deemed abandoned.  To be extant when security was given on 22 October, appeals would need to have been filed no more than 14 days before that date – i.e. after 8 October.  On 18 October, the Court received an application for special leave to appeal out of time in respect of the 21 March judgment and a new notice of appeal in respect of the 30 August ruling.  Since the order was sealed in respect of both at the same time it is not apparent why they were treated differently.  Both were more than 28 days after the date of sealing being the time for appealing fixed by rr5 and 6.

[8]       There is now before the Court the application filed on 16 October for special leave to appeal out of time against the 21 March judgment and another application (filed on 30 October) for special leave to appeal out of time against the 30 August costs judgment.

[9]       After hearing counsel on 17 February the Court ruled that leave to appeal against the 21 March judgment would be refused but that leave would be granted to appeal against the 30 August order.  We now give our reasons.

[10]     The discretion to grant special leave to appeal is wide and the Court has not set any fixed criteria.  All of the circumstances are to be considered.  They include the history of the matter, the positions of the parties, the extend to which the appeal is out of time and the explanation for failure to appeal within time, the nature of the case and the merits of the proposed appeal where they can be assessed.

[11]     While the wording of r5 differs from that of its predecessor r27 of the Court of Appeal Rules 1955, the underlying principles remain.  The Rules in 1997 brought additional emphasis to the need for proposed appellants to act expeditiously:  Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29. A proposed appellant seeking the indulgence of the Court must show that the justice of the case requires that the opportunity to test the judgment be given even though the prescribed time for appealing has been allowed to lapse.

[12]     So long as the period of delay is short and the proposed appellant has acted expeditiously after realising the failure, the Court has tended to grant leave where there has been mistake, inadvertence or sickness or other difficulty fully explained and no undue prejudice to the proposed respondent.  But where the delay is not sufficiently explained or where something has happened to prompt a desire to appeal at a late stage leave will not readily be granted:  Thompson v Turbott [1963] NZLR 71, 80, Fisher & Paykel Ltd v Commerce Commission [1991] 1 NZLR 569.

[13]     In this case Glen Eden appealed promptly against the 21 March substantive judgment.  Even after advice was given that the appeal was deemed abandoned through failure to give security for costs, the time for appeal was still open – the judgment had not been sealed.  But no step was taken until after the ruling on costs was given on 30 August.  Even then an appeal could have been filed within time for another five weeks.  It is correct that within that period some attempts were made to appeal though they can hardly be taken seriously.  After the earlier failure to give security for costs, omission again to do so within the prescribed time is inexcusable as is the failure to tender the filing fee.

[14]     In the circumstances the inevitable inference is that the earlier abandonment was accepted and the desire to appeal was revived only by the subsequent costs ruling.  Even then an appeal could have been filed and security given in time but it was not.

[15]     The amount involved in the proceeding is not large and we are not satisfied any question of general or public importance is involved.

[16]     We were not persuaded in terms of the justice of the case that there should be leave to appeal against the substantive judgment.

[17]     The position in relation to the costs ruling is somewhat different.  There was not the same lapse of time nor abandonment of an earlier appeal.  Steps were taken towards appealing though they were unimpressive.  They may be characterised as involving mistakes and inadvertence.  While we hesitated because of reservations about the merits of an appeal limited to the issue of costs, we concluded that it would be somewhat harsh to deny the opportunity to appeal in the circumstances.

[18]     Leave to appeal against the 30 August ruling is granted.  The security for costs already given may be treated as given on this appeal.  The six month period provided for in r10 is to run from 17 February 2003.

[19]     The proposed appellant has been unsuccessful on one application and has secured an indulgence on the other.  An award of costs in favour of the proposed respondents is appropriate.  We fix that at $1,000 together with disbursements approved, if necessary, by the Registrar.

Solicitors:
Rice Craig, Papakura, for Applicant
Nigel Faigan, Auckland, for Respondents