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 2006-412-000513 4 September 2009.  In doing so, Fogarty J concluded that statements made by Associate Judge Osborne as to the effect of the ASA gave rise to the operation of the doctrine of res judicata.  Mr Humphries has appealed against Fogarty J’s decision to this Court.

The competing contentions

[8]        Mr Humphries wants to argue he is entitled to a permanent stay of the order for specific performance.  He says the ASA was in full accord and satisfaction and effectively overrode the order for specific performance.  The essential point made for Mr Humphries in support of the application to set aside the abandonment is that if he cannot revive the abandoned appeal and does not succeed on the appeal against Fogarty J, he will be deprived of his ability to argue in this Court about the effect of the ASA on the specific performance judgment. 

[9]        Mr Humphries also says he has always made it clear he wanted to run this argument.  Mr Gilchrist, on behalf of Mr Humphries, submits this matter can be dealt with along with the hearing of the appeal before Fogarty J and will not add significantly to the time involved in hearing that appeal.

[10]       Mr Carr’s approach is that Mr Humphries, having made an informed choice, should not now be able to go back on that choice.

The relevant principles

[11]       Rule 44 of the Court of Appeal (Civil) Rules 2005 governs abandonment of a civil appeal by a party to the appeal.  Rule 44 is silent as to the effect of an appeal and provides as follows:

(1)A party may, at any time, abandon an appeal brought by the party by filing in the Registry a notice advising that the party—

(a)         does not intend to prosecute the appeal further; and

(b)         abandons all further proceedings concerning that appeal.

(2)         The notice must be signed by—

(a)         the party personally; or

(b)         the party’s solicitor or counsel.

(3)The abandonment of an appeal does not affect the power of the Court to make any order as to costs in respect of the appeal.

[12]       The parties approached the matter on the basis that the relevant principles were those applicable when a criminal appeal is abandoned.  Those principles were discussed by this Court in R v Cramp [2009] NZCA 90.

[13]       In Cramp, the Court noted that the relevant rule in the Court of Appeal (Criminal) Rules 2001 (r 35) was silent as to the effect of an abandonment. By contrast, the Court said at [16], the predecessor to r 35 in the Criminal Appeal Rules 1946 (r 44) provided that, on an abandonment, the appeal was deemed to have been dismissed. The Court went on to say that a notice of abandonment could be set aside in “exceptional” circumstances, having regard to the importance of finality and if the interests of justice require: at [26].

[14]       The effect of abandonment of a civil appeal in a case like the present under the 2005 Rules does not appear to have been discussed.  In WCC v Kelly CA462/95 29 May 1996 (full text not available), a case presumably decided under the Court of Appeal Rules 1955, the appeal was deemed to be dismissed where a notice of abandonment had been filed.  The 1955 Rules made no reference to abandonment by a party although the Court could declare an appeal to have been abandoned for non-compliance with the Rules, under r 15. 

[15]       There are decisions which consider the effect of abandonment in the context of r 43.  Rule 43 provides that appeals are deemed to be abandoned when the case on appeal is not filed in a timely manner. 

[16]       In relation to r 43, this Court in Sexton v Rice Craig [2007] NZCA 200 decided there was jurisdiction under r 29(4) of the 2005 Rules to grant leave for a new appeal in the case of a deemed abandonment: at [30]. The Court said that the discretion under r 29(4) should not be exercised in a way that undermines the objectives of r 43: at [31]. The Court continued at [31]:

As a consequence, it will be rare in deemed abandonment cases that the Court will exercise its r 29(4) discretion.  The case for the exercise of the discretion will need to be compelling.  The Court must reach an overall assessment in the light of all relevant considerations.  These will include the explanation for the delay and for the failure to apply for an extension under r 43, and the merits of the proposed appeal.  Other factors will also be relevant, for example, prejudice to the respondent.  The hurdle is a high one.

[17]       For present purposes, we do not need to reach a final view on the effect of an abandonment under r 44.  It is clear that, whether or not abandonment leads to dismissal, the applicant who wishes to have his or her notice of abandonment set aside must meet a high threshold.  The case for the Court’s exercise of its discretion must be, as put in Sexton at [31], at least “compelling” or, as in Cramp, comprise an “exceptional” case.  In assessing whether the threshold is met, it must be telling in the case of a notice of abandonment that the appellant has made a choice not to continue whereas in the case of a deemed abandonment the appellant may not have exercised any choice in the matter but rather let matters slide or simply overlooked a time limit.

[18]       Some guidance also may be taken from those cases dealing with the extent to which a party is permitted to depart from a concession.  This matter was considered by the Supreme Court in Otago Station Estates Ltd v Parker [2005] 2 NZLR 734. The Court there used the Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024 at [21] (HL) test for allowing a party to resile from a concession. The Supreme Court expressed the test at [11] as follows:

It is only rarely and with extreme caution that a second level appellate Court will allow a point to be raised which has been conceded below and it should not do so if there is any possibility that the outcome might have been affected if the point had been taken earlier.

[19]       This Court has said in GFW Agri-Products v Gibson [1995] 2 ERNZ 323 at 327 that:

It is of course open to any court in appropriate circumstances, and perhaps with consequences in costs, to permit a party or counsel to resile from a concession made where the interests of justice so require.

[20]       We turn then to apply these principles to Mr Humphries’ case.

Application of principles to this case

[21]       The current position is that, if Fogarty J’s decision stands, Mr Humphries’ choice to proceed in the High Court will not in hindsight have been a good one for him.  Mr Humphries says it is not fair to confine him to his choice.  On this aspect, Mr Humphries can point to the fact that Fogarty J expressed some sympathy for Mr Humphries’ predicament.  His Honour said at [50]:

Unless there is some means of getting the matter back before the Court of Appeal, on appeal from the judgment of Associate Judge Osborne, or perhaps on appeal from this judgment, Mr Humphries has lost an opportunity to take to the Court of Appeal the question of whether or not Mr Carr lost his right to specific performance as granted to him in the 2006 judgment, when failing to perform the ASA.

[22]       There is also some merit in the argument that the most practical course is for the two matters to be dealt with together in this Court.  The alternative is that, if Mr Humphries succeeds in the appeal against Fogarty J, the matter will go back again to the High Court and essentially start again.  We note here that Fogarty J did hear argument on the effect of the ASA but declined to rule on that given his findings on res judicata.

[23]       However, other factors tell against allowing the applicant to have a second bite at the cherry.  The first point is that Mr Humphries, who was represented, made an informed choice.  Secondly, not only did Mr Humphries make an informed choice but he did so in the knowledge that Mr Carr would take all available points in the High Court.  This is not a case of some unexpected factor emerging at some later point in time.  Finally, the respondent would in effect be being deprived of the benefit of Fogarty J’s judgment by a means other than a successful appeal against that decision itself.

[24]       Because of these three factors, we do not consider the circumstances of Mr Humphries’ case are so compelling as to warrant setting aside the notice of abandonment.

[25]       For these reasons, the applications to set aside a notice of abandonment and for an extension of time to bring the appeal are declined.

Costs

[26]       There is no reason why costs should not follow the events.  The respondent is accordingly entitled to costs on a band A basis for an application for leave and usual disbursements.

WILLIAM YOUNG P

[27]       I think it clear that the abandonment in this case is not tantamount to a dismissal of the appeal and thus does not give rise to a res judicata.  Rather, it simply terminated the original appeal.  On this approach the issue is whether to extend time for lodging a further appeal.

[28]       I would extend time because:

(a)I can see no relevant prejudice to the respondent which could not be addressed by an order for costs.

(b)In this regard, I do not see loss by the respondent of a forensic advantage associated with the abandonment as relevant prejudice. Such a consequence is a necessary corollary of any extension of time.

(c)Given the on-going dispute between the parties, finality considerations are less significant than would usually be the case.

(d)Accordingly, I regard the controlling consideration as the desirability of facilitating an orderly resolution of all the disputes between the parties, instead of a resolution which may turn out to be artificially strictured by a false procedural step.

Solicitors:

Dyer Whitechurch, Auckland for Applicant

Rhodes & Co, Christchurch for Respondent