Green v Gillette - [2021] NZCA 323

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA278/2019
[2021] NZCA 323

BETWEEN	THOMAS PATTON GREEN Appellant
AND	NATHAN DANIEL GILLETTE Respondent

Court:	Cooper and Clifford JJ
Counsel:	Appellant in person No appearance for Respondent
Judgment: (On the papers)	19 July 2021 at 11.00 am

JUDGMENT OF THE COURT
[Application for recall]

AThe application for recall of this Court’s judgment of 30 October 2020 is granted and the judgment is recalled.
BThe time for applying for the allocation of a hearing date and filing the case on appeal is extended to Friday 27 August 2021.
CThe appellant must proceed to diligently carry out the necessary steps under the Court of Appeal (Civil) Rules 2005. These include his obligations under r 39(1) to prepare the case on appeal in consultation with the respondent and under r 40 as to the form and content of the case on appeal.

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REASONS OF THE COURT

(Given by Cooper J)

In a judgment dated 30 October 2020, we declined an application for an extension of time to file the case on appeal and apply for the allocation of a hearing date for this appeal under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules).[1] We directed that the appeal was to be treated as abandoned under r 43(1). Mr Green has sought the recall of that judgment.[2]
[1]Green v Gillette [2020] NZCA 533, [2021] NZCCLR 4.
[2]Court of Appeal (Civil) Rules 2005, r 8A.
The background to Mr Green’s application for an extension of time was set out in the judgment of 30 October 2020 as follows:
[2]       The appeal is against a judgment of Cooke J in which the Judge upheld a claim made by the respondent, Mr Gillette, for relief under s 174 of the Companies Act 1993.   In 2014, Mr Green formed a company called Sunpower Ltd (Sunpower). Mr Green and Mr Gillette entered into a shareholders’ agreement on 18 January 2016, under which Mr Gillette obtained the right to acquire up to 49 per cent of the shares in Sunpower for a total of $98,000, which he paid shortly afterwards.
[3]       There was also an employment agreement dated 21 January 2016, executed by Mr Gillette and Sunpower. This provided for a 90-day trial period, and an annual salary of $60,000 with potential bonuses payable if sales targets were met. However, the relationship between the parties deteriorated and by the end of March 2016 Mr Green had advised Mr Gillette that Sunpower did not have sufficient money to pay Mr Gillette’s salary. Payments of salary ceased, and Mr Gillette subsequently ceased working for Sunpower in July 2016.
[4]       Mr Gillette brought proceedings in the Employment Relations Authority (the ERA). The ERA decided Mr Gillette had been wrongly deprived of his salary and that he had been unjustifiably dismissed. It ordered the company to pay him $26,043.96 for arrears of salary between 22 February 2016 and 28 July 2016, and imposed…

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 Green v Gillette

Details

AGLC: Green v Gillette [2021] NZCA 323
Case: [2021] NZCA 323
Decision Date: 19 July 2021 at 11.00 am

CaseChat Overview and Summary

In Green v Gillette, the Court of Appeal of New Zealand revisited an earlier judgment that had deemed the appeal abandoned due to an applicant's failure to file the case on appeal and apply for a hearing date within the stipulated time. Thomas Patton Green, the appellant, had lost a case in the High Court to Nathan Daniel Gillette, the respondent, who had been awarded compensation under section 174 of the Companies Act 1993 for unfair prejudice suffered in the context of their business dealings. Mr Green had appealed the High Court's decision, but the Court of Appeal declined to extend the time for filing the case on appeal and applying for a hearing date. Mr Green then sought to recall this judgment. The key issues before the Court of Appeal were whether the recall should be granted and, if so, whether an extension of time for the appellant to file the case on appeal and apply for the allocation of a hearing date should be granted. The Court of Appeal found that the appellant's delay in filing the case on appeal was partially attributable to a misunderstanding arising from advice given by the Registrar. While the appellant had not provided a satisfactory reason for the delay, the Court of Appeal determined that the appeal's prospects of success were not so weak as to justify refusal of an extension of time on that basis alone. The Court of Appeal granted the recall application and extended the time for the appellant to file the case on appeal and apply for the allocation of a hearing date. The appellant was directed to proceed diligently with the necessary steps under the Court of Appeal (Civil) Rules 2005.

Orders