Hubbard v Kiwirail Limited - [2019] NZCA 244

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA349/2018
[2019] NZCA 244

BETWEEN	PETER BRENT HOME HUBBARD AND HARLEY HAYNES Applicants
AND	KIWIRAIL LIMITED Respondent

Court:	Miller and Collins JJ
Counsel:	Applicants in person M L Campbell and S J Thomson for Respondent
Judgment: (On the papers)	24 June 2019 at 10.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to file the case on appeal and apply for a hearing date is declined.
BThe application for leave to adduce further evidence is declined.
CNo order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Messrs Hubbard and Haynes (the applicants) wish to appeal a decision of Associate Judge Smith,[1] in which he:
(a)ordered the liquidation of Oceanic Palms Ltd (Oceanic Palms); and
(b)refused to stay his decision pending other litigation.
[1]KiwiRail Ltd v Oceanic Palms Ltd [2018] NZHC 1164.
The applicants are the shareholders and directors of Oceanic Palms. A notice of appeal was filed by them one day out of time. Brown J granted an extension of time in which to appeal. The notice of appeal was deemed to be filed on 6 August 2018. As a consequence, the case on appeal had to be filed by 6 November 2018. Failure to comply with this deadline would mean the appeal would be treated as having been abandoned, unless an application for an extension was made before 6 November 2018 or within three months of that date.[2]
[2]Court of Appeal (Civil) Rules 2005, r 43(3).
On 21 December 2018, the applicants applied for an extension of time to file the case on appeal. Further applications for an extension of time to file the case on appeal were made on 29 January, 29 March and 23 April 2019. The applicants applied for a fixture on 26 April 2019. The case on appeal was filed on 30 April 2019. In addition, on 26 April 2019 the applicants filed an application to submit a “supplementary bundle” of documents.
Two applications are addressed in this decision:
(a)the application for leave to extend time for filing the case on appeal; and
(b)the application for leave to adduce further evidence.

Background

The current applications are part of a protracted dispute arising from a lease that Oceanic Palms had with KiwiRail Ltd (KiwiRail). The dispute began when KiwiRail increased the rent that Oceanic Palms was to pay. Oceanic Palms refused to pay the increased rent. It then unsuccessfully sought in the High Court relief against forfeiture of the lease.[3] Oceanic Palms’ appeal from that decision was dismissed by this Court.[4] An application for leave to appeal was dismissed by the Supreme Court.[5] Oceanic Palms then made application for interim relief under the Judicial Review Procedure Act 2016. That application was dismissed by the High Court.[6] KiwiRail then served a statutory demand on Oceanic Palms. When Oceanic Palms failed to comply with the notice of demand, KiwiRail successfully applied for liquidation…

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.

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Details

Case: [2019] NZCA 244
Decision Date: 24 June 2019 at 10.30 am

CaseChat Overview and Summary

Hubbard and Haynes appealed a decision of Associate Judge Smith, which ordered the liquidation of Oceanic Palms Ltd and refused to stay his decision pending other litigation. The applicants, who are the shareholders and directors of Oceanic Palms, filed a notice of appeal one day out of time, but Brown J granted an extension of time in which to appeal. As a result, the case on appeal had to be filed by 6 November 2018, and failure to comply with this deadline would mean the appeal would be treated as having been abandoned. The applicants applied for an extension of time to file the case on appeal on 21 December 2018, and further applications for an extension of time were made on 29 January, 29 March and 23 April 2019. The applicants also applied for a fixture on 26 April 2019 and filed a case on appeal on 30 April 2019. In addition, the applicants filed an application to submit a "supplementary bundle" of documents on 26 April 2019.
The legal issues in this case were whether the applicants should be granted an extension of time to file the case on appeal and whether they should be granted leave to adduce further evidence. The applicants argued that they had misunderstood the requirements of the case on appeal and that the delay in filing the case on appeal was due to a misapprehension on their part. They also argued that they were unaware of the time limits in the statutory demand notice. The Court of Appeal found that the applicants' arguments lacked merit and that there were four insurmountable hurdles facing the applicants. These hurdles included the fact that the claims in the appeal had already been conclusively determined in favour of KiwiRail in the lease forfeiture and judicial review proceedings, and that the appeal was likely to be moot as the liquidation of Oceanic Palms was almost complete. The Court of Appeal also found that the documents that were the subject of the application to adduce further evidence were not evidence and should not form part of a case on appeal.
The Court of Appeal declined the application for an extension of time to file the case on appeal and declined the application to adduce further evidence. The Court found that there was no order as to costs. The applicants, who are lay litigants, were granted some latitude on account of the fact that they are not represented, but the Court found that the delay in filing the case on appeal was due to a misapprehension on their part and that the appeal lacked merit. The Court also found that the documents that were the subject of the application to adduce further evidence were not evidence and should not form part of a case on appeal.

Orders