Humphries v Carr - [2009] NZCA 608

IN THE COURT OF APPEAL OF NEW ZEALAND
CA247/2009
[2009] NZCA 608
BETWEENRODNEY JOHN HUMPHRIES

Applicants

ANDEWAN ROBERT CARR

Respondent

Hearing:1 December 2009

Court:William Young P, Glazebrook and Ellen France JJ
Counsel:A R Gilchrist for Applicant

S Caradus for Respondent

Judgment:18 December 2009 at 2.30 pm

JUDGMENT OF THE COURT

AThe applications to set aside a notice of abandonment and for an extension of time to bring the appeal are declined.
BThe applicant must pay the respondent costs on a band A basis for a standard application for leave to appeal and usual disbursements.

REASONS
Glazebrook and Ellen France J  [1]
William Young P (dissenting)  [27]
GLAZEBROOK AND ELLEN FRANCE JJ
(Given by Ellen France J)
Introduction
[1]        The appellant, Rodney Humphries, seeks to set aside a notice of abandonment of his appeal in relation to a judgment of Associate Judge Osborne of 8 April 2009. Mr Humphries also seeks an extension of time within which to bring this appeal.
Background
[2]        Mr Humphries and the respondent, Ewan Carr, were in business together. The relationship between them deteriorated after the death of their other business partner.
[3]        They tried to resolve their differences in a number of ways. One of their attempts resulted in a deed of assignment of loan. In July 2006, Mr Carr took proceedings against Mr Humphries seeking specific performance by Mr Humphries of his obligations under this deed. He obtained summary judgment, without Mr Humphries being heard, from Associate Judge Christiansen on 16 November 2006. Mr Humphries appealed to this Court. He also applied to the High Court to set aside the summary judgment.
[4]        Subsequently, in May 2007, Mr Humphries and Mr Carr entered into an amended settlement agreement (ASA). Settlement did not occur in terms of the ASA and so, on 31 May 2007, Mr Humphries cancelled the agreement. This cancellation was upheld in the High Court (Frost v Carr HC DUN CIV 2007-412-507 29 February 2008 Randerson J) and in this Court ([2008] NZCA 391).
[5]        Mr Humphries then brought on for hearing his application to set aside Associate Judge Christiansen’s 2006 judgment. That application was subsequently dismissed by Associate Judge Osborne in a judgment delivered on 8 April 2009. Mr Humphries appealed against that decision to this Court.
[6]        Mr Humphries’ two appeals (against the decision of Associate Judge Christiansen ordering specific performance and that of Associate Judge Osborne refusing to set aside the judgment for specific performance) were to be heard together in June 2009. The fixture did not go ahead because of illness on the panel but both appeals, in any event, were abandoned.
[7]        Mr Humphries abandoned his appeals to this Court because he decided that the High Court was the proper forum to resolve the issues between the parties. This approach led to the hearing in late August 2009 of the appeal against Associate Judge Osborne’s refusal to set aside the specific performance judgment before Fogarty J. Fogarty J dismissed the appeal: HC DUN CIV…

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 Humphries v Carr

Details

AGLC: Humphries v Carr [2009] NZCA 608
Case: [2009] NZCA 608
Decision Date: 18 December 2009

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Rodney John Humphries against Ewan Robert Carr. Humphries sought to set aside a notice of abandonment of his appeal against a judgment of Associate Judge Osborne and to extend the time within which to bring this appeal. The underlying dispute between Humphries and Carr arose from their deteriorating business relationship and subsequent legal proceedings. Humphries initially appealed a summary judgment obtained by Carr in 2006, which was later dismissed. Humphries also challenged an amended settlement agreement, which was cancelled and upheld in court. Humphries' appeals against the specific performance order and the refusal to set aside the judgment were abandoned, leading to the current application.

The legal issues before the court were whether the notice of abandonment could be set aside and if an extension of time to bring the appeal should be granted. The court considered principles from both civil and criminal abandonment rules, noting that while abandonment does not necessarily lead to a dismissal, setting aside a notice of abandonment requires a compelling case. The court also looked at the principles for allowing a party to depart from a concession, emphasizing the importance of finality and the interests of justice.

The Court of Appeal decided that the circumstances of Humphries' case did not warrant setting aside the notice of abandonment. The court found that Humphries made an informed choice to proceed in the High Court and that there was no compelling reason to allow him to revisit the decision. The court declined the applications to set aside the notice of abandonment and for an extension of time. The respondent was awarded costs on a band A basis for a standard application for leave to appeal and usual disbursements.

Orders