Heslip v Heslip
[2024] NZCA 662
•13 December 2024 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA392/2024 |
| BETWEEN | GLEN ALLAN HESLIP |
| AND | PHILLIPA JOY HESLIP |
| Court: | French P and Hinton J |
Counsel: | Applicant in person |
Judgment: | 13 December 2024 at 11 am |
JUDGMENT OF THE COURT
A The application for an extension of time is declined.
BThe applicant is to pay the respondent costs on a band A basis, together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
This judgment addresses an application for extension of time to file an appeal against an order for adjudication of bankruptcy.
Mrs Heslip, the respondent, applied to have her ex-husband, Mr Heslip, the applicant, adjudicated bankrupt, following his failure to pay a substantial sum due to her under a consent judgment of the Timaru Family Court dated 19 July 2021.
She obtained the issue of a bankruptcy notice on 16 February 2022, which was served on Mr Heslip on 5 March 2022. Mrs Heslip then filed her application to adjudicate Mr Heslip bankrupt on 26 May 2022. After the application had been adjourned on several occasions, Associate Judge Paulsen made an order that Mr Heslip would be adjudicated bankrupt on 7 November 2022.[1] He also awarded costs to Mrs Heslip on a 2B basis and disbursements as fixed by the Registrar.[2]
[1]Heslip v Heslip [2022] NZHC 2910 at [13].
[2]At [14].
The Judge noted the following background leading up to the adjudication order:
(a)Mrs Heslip’s application had been adjourned several times because Mr Heslip had filed a notice of intention to oppose on the ground he was applying to have the consent judgment of the Family Court set aside. After some delay he eventually made that application, which was heard by Judge Dravitzki on 20 October 2022 and subsequently dismissed.[3]
(b)When the adjudication application came back before the High Court on 31 October 2022, Mr Heslip advised that he accepted the Family Court consent judgment and he was taking steps to pay Mrs Heslip. This would require him to undertake work on and sell certain properties and so he needed time to pay the debt. The application was adjourned to 7 November 2022 so that Mr Heslip could obtain legal advice, as the Judge had previously advised him he should.[4]
(c)On 22 November 2022, Mr Heslip emailed the High Court advising he would not be appearing as he had tested positive for COVID-19. At the same time, he advised that he had applied to the Official Assignee to have himself adjudicated bankrupt.[5] The Official Assignee confirmed Mr Heslip had made a debtor’s application but said it had not been accepted because Mr Heslip had not satisfactorily completed a statement of affairs, which he had been asked to do by 11 November 2022.[6]
[3]At [5].
[4]At [6].
[5]At [7].
[6]At [8].
With that background, the Judge was not prepared to further adjourn the application and made the adjudication order.[7] He noted that Mr Heslip had not raised any new matters and had not actually applied for an adjournment. In all the circumstances the Judge could see no purpose being served by adjourning the matter again.[8]
Application for extension of time to appeal
[7]At [10] and [13].
[8]At [12].
On 14 June 2024, Mr Heslip applied to this Court for an extension of time to file an appeal against the bankruptcy order, pursuant to r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules). This was 376 working days after the adjudication order.
Rule 29(1) of the Rules provides that a party must bring an appeal within 20 working days after the date of the decision against which they wish to appeal.
Rule 29A of the Rules provides as follows.
29A Extension of time for appealing
(1)If the appeal period prescribed by an enactment or the period prescribed by rule 29(1) or (2) has expired, a party who wishes to appeal may make an interlocutory application for an extension of time in which to appeal.
(2) [Revoked]
(3)If the Court or a Judge grants an extension of time, the party wishing to appeal must bring the appeal—
(a)within the time specified by the Court or the Judge when granting the extension; or
(b)if no time is specified by the Court or the Judge, within 20 working days after the day of the decision granting the extension of time.
…
Mr Heslip says he was unable to file the appeal within the prescribed time due to unforeseen circumstances and complexities surrounding the case, including a need to seek adequate legal representation and to compile necessary evidence. He says he has diligently sought to rectify these issues and to prepare a comprehensive appeal but requires additional time to ensure all pertinent information and documents are adequately presented.
Mr Heslip raises arguments relating to the Family Court proceedings. He says he “[a]ppeals the decision regarding the division of relationship property” and disputes the respondent’s assertions that he has not prioritised payment of her share of the relationship property or that he has engaged in actions without regard to the impact on the relationship property pool. He says compliance costs were not adequately accounted for in the respondent’s valuation of the relationship property and seeks a revaluation taking those costs into account. Mr Heslip submits that this current appeal should be allowed and the matter remitted to the Family Court. Further, he says that because the respondent commenced bankruptcy proceedings and all properties were sold at mortgagee sale, his business was destroyed. He and his children, who he says “reside” with him in the family home, are “left homeless” and “multiple family homes and jobs [are] gone”.
The respondent opposes the extension of time. Her counsel says that Mr Heslip’s justifications for delay are vague and unsupported by evidence. The respondent points to Mr Heslip’s history of non-compliance with court orders and timetabling directions and submits that the proposed appeal is entirely without merit. Counsel notes in particular that Mr Heslip had himself applied to the Official Assignee to be adjudicated bankrupt prior to the adjudication order being made in the High Court.
The respondent submits that while Mr Heslip says one reason for delay was issues regarding legal representation, he does not set out what those issues were and he remains self-represented, despite repeated advice that he should obtain legal representation. In addition, despite the delay being allegedly due to a need to compile necessary evidence in support of his appeal, none has been filed, nor has Mr Heslip set out which documents he wishes to present to the Court.
Analysis
Almond v Read provides five relevant considerations for an extension of time.[9] These are length of delay; reasons for the delay; the conduct of the parties, particularly the applicant; any prejudice or hardship that arises to the respondent or others with a legitimate interest in the outcome; and the significance of the issues raised by the proposed appeal, both to the parties and generally.
[9]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
The merits of the proposed appeal are also in principle relevant, but can be overwhelmed by other factors. Any consideration of the merits must, in the context of an application for an extension of time, be relatively superficial.[10] The ultimate question however is what the interests of justice require.[11]
[10]At [39].
[11]At [38].
We are not satisfied that an extension of time should be granted. Mr Heslip’s application is out of time by approximately one year, which is a lengthy delay. The process to adjudication had already taken over eight months. The case is not complex. The alleged reasons for delay have no apparent validity. Mr Heslip has known for a long time he should secure legal representation and has not done so, nor provided information as to why he has not. His claimed need to compile necessary evidence is unsubstantiated and none has been filed.
There is clearly no merit in the appeal. Mr Heslip has not identified points of the Judge’s decision that he says are in error. He is conflating the Family Court proceedings with the decision of the Associate Judge adjudicating him bankrupt. He has already attempted to reopen the orders made by consent in the Family Court without success and then said he accepted that judgment. Most significantly, he himself applied to the Official Assignee to be adjudicated bankrupt prior to the adjudication order that he now seeks to extend time to appeal.
For completeness, we note that any appeal against the Judge’s decision would be treated by this Court as interlocutory and therefore requiring leave,[12] so that Mr Heslip faces a double hurdle.
[12]Senior Courts Act 2016, s 56(3); and Navaratnam v HG Metal Manufacturing Ltd [2024] NZCA 351 at [10].
We are satisfied that it would be contrary to the interests of justice to allow an extension of time.
Result
The application for an extension of time is declined.
The applicant is to pay the respondent costs on a band A basis, together with usual disbursements.
Solicitors:
Timpany Walton, Timaru for Respondent
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