Harlow v Gemmell - [2007] NZCA 101

IN THE COURT OF APPEAL OF NEW ZEALAND
CA152/06
[2007] NZCA 101
BETWEENKENNETH WILLIAM HARLOW

Appellant

ANDCHRISTINE MARGARET GEMMELL

Respondent

Hearing:12 March 2007

Court:Hammond, Arnold and Wilson JJ
Counsel:D A T Hollings for Appellant

P J Dale and J Taylor for Respondent

Judgment:29 March 2007 at 10 am

JUDGMENT OF THE COURT

A The time for filing the Case on Appeal and applying for the allocation of a hearing date is extended to 12 February 2007.
BThere is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wilson J)

Introduction
[1]       By an application filed within the six month period imposed by r 43 of the Court of Appeal (Civil) Rules 2005, the appellant seeks an extension of the time for filing the Case on Appeal and applying for the allocation of a hearing date until 12 February (the actual date of filing of those documents).
[2]       The respondent opposes the application, essentially on the grounds that the delay was a consequence of a deliberate decision, rather than the usual situation of an oversight, and that the appeal is devoid of merit.
The delay
[3]       We are satisfied on the information placed before us that the delay in the preparation of the Case on Appeal and the preparation of Points on Appeal was due to a combination of new counsel (Ms Hollings) being instructed for the appellant and the intervention of the long vacation.
[4]       The application was filed on 17 January this year, 11 days before the expiration of the six months’ time limit on 28 January. Although originally an extension of eight weeks was sought, only a two week extension proved necessary because, as previously noted, the Case on Appeal and application for a fixture were filed on 12 February.
[5]       Although we have difficulty in understanding why at least the Case on Appeal could not have been prepared by the appellant’s solicitor or former counsel, the filing of the application within the six month period and the short period of delay lead us to conclude that the application should be granted unless the appeal is devoid of merit.
[6]       More particularly, we do not see the fact that the delay was a consequence of a deliberate decision rather than an oversight as a reason for refusing the application.
The merits of the appeal
[7]       The appellant wishes to challenge a judgment of the High Court setting aside an agreement between the parties for the sharing of property.
[8]       Predictably, Ms Hollings submitted that the appeal has substantial prospects of success but Mr Dale submitted that it is devoid of merit.
[9]       Having considered these submissions, we are satisfied that there is at least a tenable basis for the contention that the agreement should not be set aside when the approach and reasoning of this Court in Harrison v Harrison [2005] 2 NZLR 349 is applied to the present facts.
[10]     Accordingly, we think that the application should be granted.
Costs
[11]     Both parties sought…

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 Harlow v Gemmell

Details

AGLC: Harlow v Gemmell [2007] NZCA 101
Case: [2007] NZCA 101
Decision Date: 29 March 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Kenneth William Harlow appealed against Christine Margaret Gemmell in a case that revolved around the setting aside of a property-sharing agreement between the parties. The Court of Appeal granted Harlow an extension for filing the Case on Appeal and applying for a hearing date, despite Gemmell's opposition. Gemmell argued that the delay was deliberate rather than an oversight, and that the appeal lacked merit. However, the Court found the delay to be due to the involvement of new counsel and the long vacation period. The Court also concluded that there was a tenable basis for the appeal's contention that the agreement should not be set aside, considering the reasoning in Harrison v Harrison. As for the costs, the Court found that the contentions of both parties balanced each other out, and thus no order was made as to costs. Both parties requested a priority fixture, with the Court highlighting the desirability of this case being allocated a priority fixture.

Orders