Gollan v Official Assignee at Hamilton - [2014] NZCA 596

IN THE COURT OF APPEAL OF NEW ZEALAND

CA694/2013
[2014] NZCA 596

BETWEEN	JAMES PATRICK GOLLAN AND VERONICA PATRICIA LYN GOLLAN Applicants
AND	THE OFFICIAL ASSIGNEE AT HAMILTON Respondent

Hearing:	24 November 2014
Court:	French, Miller and Cooper JJ
Counsel:	J P Gollan in person G S Caro for Respondent
Judgment:	5 December 2014 at 11.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Mr and Mrs Gollan seek to appeal from a decision of the High Court at Hamilton dismissing an application under s 226 of the Insolvency Act 2006 (the Act). They had applied to review a decision of the Official Assignee (the Assignee) refusing to assign to them causes of action under the Law Reform (Testamentary Promises) Act 1949 and the Family Protection Act 1955.[1]
[1]Gollan v Official Assignee [2013] NZHC 2094.
Those claims would be advanced against the trustees and executors of the estate of Mrs Gollan’s mother, Mrs Luders, who died on 28 July 2008. Mrs Gollan is one of five adult children of Mrs Luders, all aged in their sixties and seventies. In her will, Mrs Luders left four elevenths of her estate to Mrs Gollan, four elevenths to another daughter, Mrs Managh and one eleventh to her three other children. However, the gift to Mrs Gollan was made conditional on repayment by her of a debt of $57,000 that she allegedly owed to Mrs Luders.
Mrs Gollan was adjudicated bankrupt on 5 May 2008 and discharged in May 2011. Mr Gollan was adjudicated bankrupt on 19 March 2012. As a result, their causes of action against the estate of Mrs Luders vested in the Assignee.
When filed, their appeal was out of time, and on 30 October 2013, Harrison J granted an extension of time to appeal. But the Gollans took no further steps. Following a telephone conference on 10 September 2014, French J directed the applicants to file and serve a new application for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005. The application was filed on 15 September.

The High Court judgment

Associate Judge Christiansen recorded that the Gollans wished to claim Mrs Luders had promised to leave them her home because they had looked after her. Mrs Gollan also advanced a Family Protection Act claim based on care for Mrs Luders, in particular since the Gollans moved to live with Mrs Luders in her home in August 2002.
The Judge noted that having investigated the position the Assignee considered the claims were unlikely to succeed. Further, Associate Judge Faire had previously dismissed an appeal by Mr Gollan against a decision by the Assignee not to take over and continue a claim against the estate, while leaving open the question of whether or not Mr Gollan could assign the cause of action.[2]
[2]Gollan v Official Assignee [2012] NZHC 1869 at [30].
Section 226 of…

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: [2014] NZCA 596
Decision Date: 5 December 2014 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr and Mrs Gollan sought to appeal from a decision of the High Court dismissing an application under s 226 of the Insolvency Act 2006. They had applied to review a decision of the Official Assignee refusing to assign to them causes of action under the Law Reform (Testamentary Promises) Act 1949 and the Family Protection Act 1955. The Assignee had refused to assign the causes of action because the claims were unlikely to succeed and were not economic to pursue.

The court was required to decide whether to grant an extension of time to appeal, as the Gollans had missed the deadline to appeal. The Gollans argued that they had not received notice of the extension of time that had been granted, or that they had mistakenly believed that they did not need to take any further steps to progress the appeal. They also argued that no prejudice would arise if a further extension were granted. The Official Assignee argued that the Gollans had been inactive for a significant period of time and that the appeal lacked merit.

The court concluded that the extension of time should not be granted. While it appeared that notice of the decision may have been sent to the Gollans' lawyer, the court was not prepared to accept, without evidence, that the lawyer had not advised the Gollans of the decision. The delay since the decision was significant and the Gollans had not shown sufficient justification for the delay. The court was also satisfied that a further extension would result in prejudice to the Assignee and to the executors and beneficiaries of the deceased's estate, as the estate had already been subject to ongoing costs associated with the litigation. The court concluded that the further application for extension of time should not be granted.

The application is dismissed.

Orders