Gough v Walsh

[2022] NZCA 395

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA213/2022
 [2022] NZCA 395

BETWEEN	BARRY JOSEPH GOUGH Applicant
AND	MICHAEL EDWARD WALSH Respondent

Court:	Miller and Collins JJ
Counsel:	C Muston for Applicant R C Mark for Respondent
Judgment: (On the papers)	24 August 2022 at 10.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is declined.

BThere will be no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. Mr Gough applies under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time in which to appeal subdivision orders made by the High Court on 29 November 2018.[1]

   [1]Walsh v Gough [2018] NZHC 3104.

2. The subdivision orders concern a property near Kaeo in Northland (the property).  Mr Gough co-owns the property with the respondent, Mr Walsh, as tenants in common.  At the time of the High Court orders, it was thought the subdivision would result in Mr Gough and Mr Walsh each receiving 80 hectares.

3. The orders in issue were made following a formal proof hearing.[2]

   [2]Pursuant to r 15.9 of the High Court Rules 2016.

4. The principles governing Mr Gough’s application to extend the time to appeal were explained by the Supreme Court in Almond v Read.[3]  Ultimately, the interests of justice will dictate whether or not an application to extend time to appeal should be granted.  Relevant considerations include:[4]

   (a)the length of the delay;

   (b)the reasons for the delay;

   (c)the conduct of the parties, particularly of the applicant;

   (d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and

   (e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.

   [3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].

   [4]At [38].

5. The merits of the proposed appeal may be relevant but are not likely to be decisive in and of themselves.  There will be instances in which the merits will be overwhelmed by other factors, such as the length of the delay and the prejudice to the respondent, and so will not require consideration.[5]

Narrative

[5]At [39].

1. Mr Gough and Mr Walsh purchased the property in 1984.  They contributed equally to the purchase price and towards the vendor mortgage.  In 1989 Mr Gough and Mr Walsh agreed they would split the property into equal halves, with Mr Walsh occupying the “front” half of the property (Lot 1) and Mr Gough the “back” half of the property (Lot 2).

2. Mr Gough and Mr Walsh developed their respective allotments.  Mr Gough built a home, barns and other structures on Lot 2.  Mr Walsh built barns and other structures on Lot 1.

3. In 2011 or 2012, Mr Gough and Mr Walsh agreed to subdivide the property in accordance with their earlier agreement so as to ensure they would each receive freehold properties each comprising approximately 80 ha.…