Green v Kelly - [2010] NZCA 398

IN THE COURT OF APPEAL OF NEW ZEALAND
CA276/2010
[2010] NZCA 398
BETWEENMERVYN KELSEY GREEN

Applicant

ANDBARBARA HARRIET KELLY

FRANK MILNE LESTER
Respondents

Hearing:17 August 2010

Court:Arnold, Ellen France and Stevens JJ
Counsel:G C McArthur for Applicant

K J Patterson for Respondents

Judgment:27 August 2010 at 9.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted on the conditions set out in [15] of the reasons of the Court.
BCosts are reserved.

REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]        This is an application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal a decision of Associate Judge Doogue making an order granting Ms Kelly and Mr Lester, the respondents, possession of a property at Islington Terrace, Waihi and an associated oral decision to decline to admit supplementary evidence.[1]
Background
[1]      Kelly v Green HC Tauranga CIV-2009-470-426, 27 January 2010.
[2]        The respondents are the registered proprietors of the Islington Terrace property. The applicant, Mr Green, is living in one of two units on the property. The previous owner, Mrs Lester, lived in the other unit. Mrs Lester was the respondents’ mother. She died in December 2006 leaving the property to the respondents. The respondents brought an action for ejection of the applicant as an unlawful occupier under Part 13, Schedule 2 of the Judicature Act 1908 and sought summary judgment.
[3]        The applicant opposed summary judgment on the basis he has an interest in the land under the Property (Relationships) Act 1976 or otherwise has contributed to the property so as to give rise to a constructive trust. The applicant lodged a caveat against the title to the property in November 2007.
[4]        The Associate Judge concluded the respondents were entitled to possession of the land. At present, all the applicant had was the right to go to Court to assert an equitable interest. This in turn might or might not result in a proprietary remedy. But until that point, the respondents as owners and registered proprietors had the present right to possession.
[5]        Associate Judge Doogue accepted the applicant’s submission that the caveat should remain for now. He said the parties should sort out the remaining procedural issues to enable substantive proceedings on the underlying issues to be brought to a hearing quickly.
[6]        The applicant has filed an application for an extension of time to appeal. The application is opposed. The respondents say that although the delay (at least in respect of that part of the appeal against summary judgment) is not extensive, the appeal is without merit. The respondents also say they are prejudiced because the applicant has resided in the property paying no rent or other outgoings since December 2006. In addition, the respondents are making payments in respect of a mortgage that was over the property.
Principles
[7]        The authorities make it plain that the issue is whether an extension of time will meet the overall interest…

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 Kelly

Details

AGLC: Green v Kelly [2010] NZCA 398
Case: [2010] NZCA 398
Decision Date: 27 August 2010

CaseChat Overview and Summary

In the case of Mervyn Kelsey Green v Barbara Harriet Kelly and Frank Milne Lester, the applicant, Mr Green, sought an extension of time to appeal a decision of Associate Judge Doogue, which granted the respondents, Ms Kelly and Mr Lester, possession of a property at Islington Terrace, Waihi. The respondents opposed the application, arguing that the delay was not extensive but the appeal was without merit, and they were prejudiced by Mr Green's continued residence in the property without payment of rent or other outgoings since the death of Mrs Lester, the previous owner and the respondents' mother, in December 2006.

The Court was required to determine whether an extension of time would meet the overall interests of justice. The relevant factors included the length of the delay, the reason for it, the merits of the appeal, and the extent of any prejudice flowing from the grant of an extension. The Court noted that the initial delay was minimal and explicable by counsel error, as the applicant's lawyer had mistakenly excluded Auckland Anniversary Day from the definition of "working day." However, there was a further two-month delay before the application for an extension of time was filed, apparently due to a delay in obtaining legal aid.

The Court concluded that the delay in filing the notice of appeal was minimal and explained by counsel error. The Court was not in a position to determine the merits of the appeal due to the paucity of material filed, but it did not find the appeal to be so lacking in merit that the applicant should not be granted an indulgence. The Court also found that the respondents were not significantly prejudiced by the delay, as the applicant had offered to pay $45 per week by way of rental while the respondents continued to pay all the outgoings on the property, including the mortgage.

The Court granted the application for an extension of time, on the condition that the applicant would file a notice of appeal, pay the filing fee, apply for the allocation of a hearing date, and file a case on appeal by 15 October 2010. The Court reserved costs.

Orders