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.

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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 costs on this application, Ms Hollings on the ground that the respondent had acted unreasonably in opposing it and Mr Dale on the ground that the appellant was seeking an indulgence. 

[12]     Ms Hollings relied on the observation of Blanchard J, delivering the judgment of this Court in Airwork (NZ) Ltd v Vertical Flight Management (1998) 12 PRNZ 407, 409 that:

On the other hand, where an application has been made under r 10(2) [the equivalent of the present r 43] within the six month period and the Court is satisfied that there is sound reason for allowing further time and that the appeal is not devoid of merit, the Court will grant the indulgence of an extension of time as a matter of normal practice.

In response, Mr Dale pointed out that the facts of that case were materially different from the present facts because the delay was a consequence of issues arising between the appellant and its indemnifier.

[13]     We think that there is some merit in the contentions of both parties, and that these contentions balance each other out. 

[14]     We therefore conclude that there should be no order as to costs.

Priority fixture

[15]     Both parties sought a priority fixture.  Particularly in the case of Ms Gemmell, we can quite understand why finality is sought as soon as possible. 

[16]     Both parties are to sign a request for a fixture within seven days of the date of delivery of this judgment; we draw the attention of the President to the desirability of this case being allocated a priority fixture, if such can be had.

Solicitors:
Bennett Vollemaere and Co, Auckland for Appellant
Palmer and Associates, Auckland for Respondent