Jones v Asbestos Solutions Limited
[2024] NZHC 649
•27 March 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2024-419-000022
[2024] NZHC 649
BETWEEN ALAN JONES
Appellant
AND
ASBESTOS SOLUTIONS LIMITED
Respondent
Hearing: 13 March 2024 Appearances:
Appellant in person
D Delic for the Respondent
Judgment:
27 March 2024
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 27 March 2024 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.
.…………………………..
Registrar/Deputy Registrar
Solicitors:
SD Legal Limited
JONES v ASBESTOS SOLUTIONS LTD [2024] NZHC 649 [27 March 2024]
[1] Mr Alan Jones applies for special leave to appeal out of time the oral judgment given in the District Court at Hamilton by Judge S Clarke on 22 February 2023.1 It is strongly opposed by the respondent, Asbestos Solutions Ltd (ASL).
[2] The application comes up against the unpromising starting point that Mr Jones has delayed until February 2024 to make an application for special leave. Moreover, the application is not accompanied by a draft notice of appeal setting out the grounds of appeal.
The decision under appeal
[3] ASL issued summary judgment proceedings in July 2022 seeking payment of an invoice for asbestos work undertaken for a quoted sum. Judgment was granted in favour of ASL in the sum of $33,353.50 based on the invoice. 2
[4] Mr Jones wished to run in defence to summary judgment that the debt is not his. He says in his affidavit in support of leave to appeal that:
I am not the homeowner nor do I possess ownership of the property in question. The responsibility for the owed monies to the asbestos company lies with the homeowner. I have Evidence [sic] indicating that the homeowner engaged in email correspondence with the asbestos company two months prior. Additionally, they convened on the day the work commenced to discuss the scope of the project.
[5] Reduced to the legal analysis, Mr Jones’ argument is that the contract under which the sum is owed is with the homeowner. To the extent that Mr Jones is an intermediary, or the party communicating with ASL or signatory to the contract, Mr Jones claims he did so only as an agent for a disclosed principal. Whether an agent is liable in such circumstances will depend on the circumstances of which I do not have the detail.3
1 Asbestos Solutions Ltd v Jones [2023] NZDC 3560.
2 Asbestos Solutions Ltd v Jones, above n 1, at [42].
3 Cynthia Hawes and Dale Lester Laws of New Zealand Agency (online ed) at [134]–[135].
[6] While the Judge was aware of the argument Mr Jones wished to run, the Judge took the view that there was no material before him that he was able to take into account given that Mr Jones’ affidavit in opposition to summary judgment had not been sworn. He considered this was an irregularity that could not be remedied.4 The application before the Court was also for leave to file the notice of opposition and affidavit late which was heard at the same time as the summary judgment application. Whether leave should be granted turned on reasons for the delay and the merit of the defence. Again, because the affidavit was not sworn in accordance with the District Court Rules 2014, the Judge considered there was nothing before him to address those issues.5
Procedural background
[7] To address the application for special leave to appeal, I need to turn to the procedural background.
[8] The proceedings were originally filed on 13 July 2022. An order for substituted service was made on 7 November 2022. An affidavit of service dated 2 December 2022 was filed advising that the documents were served as well as emailed. The affidavit said that the server had included an on notice interlocutory application for summary judgment. Mr Jones disputes this or at least, that it included a date for the application.
[9] The first call of the matter was on 6 December 2022. Mr Jones rang the Court on 25 November 2022 and was informed that the upcoming date was a judicial conference. He filed a notice of opposition and an unsworn affidavit on 5 December 2022. He had COVID-19 at the time and advised the Court he could not get into the Court to have his affidavit sworn. It is clear from communication with the Court (Mr Jones has obtained a transcript) that he was told the next date was 6 December in the Hamilton District Court. The advice was that this was a list hearing where directions could be made to manage the case.
4 Asbestos Solutions Ltd v Jones, above n 1, at [31].
5 At [28]-[34] and [38].
[10] The Judge received a memorandum from Mr Jones on 9 December 2022 setting out, from his perspective, why the notice of opposition and affidavit were filed late.6 Following timetabling of oppositions to that application on 22 December the Court directed both the leave and summary judgment application to be heard on 22 February 2023.
A red herring
[11] Mr Jones is particularly distressed that he received wrong advice from the 0800 Courts Helpline as to the nature of the 6 December hearing. He regards this as the source of his omissions in failing to defend the matter properly. This is somewhat of a red herring.
[12] It does appear Mr Jones was aware of the need to file documents in advance of the 6 December 2022 hearing and that these were filed late (irrespective of whether he thought the hearing was administrative only). The matter was not heard on 6 December 2022 in any event.
[13] The primary issue of consequence for the Court in considering the application for leave and the substantive application for summary judgment was that Mr Jones’ affidavit that was accepted for filing had not been sworn. I observe that there is nothing that indicates Mr Jones was advised that he needed to follow up with a sworn affidavit or that the one he filed when he had COVID-19 was not enough. This does not appear to have been raised with Mr Jones until the Judge refused to consider that material on 22 February 2023.
Delay
[14] There has been extensive delay by Mr Jones in seeking special leave to appeal. Moreover, ASL emphasises that even after it took further steps on the judgment, Mr Jones took no steps to seek leave to appeal.
6 I note that this explanation was incorrect in that Mr Jones said he was told that the hearing date was on 7 December whereas the call plainly does refer to the call being on 6 December. However, it is correct that Mr Jones was under a misapprehension based on the call that this would be an administrative hearing only.
[15] In August 2023, the High Court issued a bankruptcy notice which was served on Mr Jones on 14 August 2023. He committed an act of bankruptcy on 28 August 2023. The application for adjudication was filed on 6 November 2023. Mr Jones took no steps until 12 December 2023 when he filed an application for stay of proceedings in the District Court. This was dismissed on 7 February 2024.7
[16] On 12 February 2024, at the first call of the bankruptcy adjudication, Mr Jones orally sought leave to appeal. Associate Judge Brittain directed him to file an application for leave and adjourned the bankruptcy application. The application was filed on 19 February 2024 but not served until 6 March 2024 requiring the current call to be enlarged to 13 March 2024.
[17] In its terms, the application for special leave relies on the call with the Court in November 2022 that I referred to earlier. However, Mr Jones also refers to the Judge having refused to look at his evidence and ruling against him based on not having filed documents in time. The application for special leave puts forward, as the justification for delay, Mr Jones’ unfamiliarity with Court processes, difficulty with obtaining legal advice (being beyond his means), his mental health and the time it took before he received a copy of the judgment.
[18] At the hearing before me, it is the mental health aspect that Mr Jones relied on primarily. He says:
…I have been grappling with significant mental and emotional challenges, as well as a series of personal difficulties that have made it extremely difficult for me to function on a day-to-day basis. As a result, navigating the court process has been especially challenging, given my limited understanding of the legal system and my fragile mental health. Additionally, my financial situation has prevented me from seeking legal representation, further exacerbating the disadvantage I face in these proceedings.
[19] He annexes a letter from his GP dated 14 February 2024 referring to Mr Jones suffering from depression, alcoholism and domestic abuse which the GP describes as indicators and causative factors of Mr Jones’ difficulty managing domestic and business affairs, including self-care.
7 Asbestos Solutions Ltd v Jones [2024] NZDC 2518.
Analysis
[20]The considerations affecting the discretion to extend time for appealing are:8
(a)the length of the delay and the reasons for it;
(b)the parties’ conduct;
(c)the extent of the prejudice caused by the delay;
(d)the respective merits of the appeal; and
(e)whether the appeal raises any issue of public importance.
[21]The latter consideration does not apply.
[22] I have considerable sympathy for ASL with the delays it has experienced and, in particular, Mr Jones having taken no steps until February this year to pursue an appeal. However, I am left with unease at the substance of the matter. On the face of it, there is some merit in Mr Jones’ contention that an arguable defence to summary judgment is available on the basis that he entered into the contract only as an agent and is therefore not liable. I do not have the original summary judgment papers before me, which makes it difficult to assess the strength of that proposition.
[23] It appears that the District Court can accept an unsworn and unaffirmed affidavit for filing notwithstanding that it cannot be later used and read.9 Mr Jones seems to have been taken by surprise to find that his non-sworn affidavit that was accepted for filing could not be considered at the application for leave to file late/summary judgment hearing. This defect was not raised with him in procedural minutes prior to the hearing. As identified by the Judge in the decision under appeal, there is some, but limited, authority supporting that the Court does not have discretion
8 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518.
9 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at HR9.73.01; compare District Court Rules 2014, r 9.63.
to waive the requirements for a sworn affidavit.10 However, the Court could have granted a short adjournment to remedy the swearing of the affidavit, particularly with Mr Jones appearing before the Court (via VMR). Mr Jones’ underlying sense of unfairness about the process has some basis.
[24] On the flip side, ASL now has faced significant delay to take the benefit of its judgment. Ultimately, however, I am persuaded that there should be a substantive consideration by the Court of Mr Jones’ defence as to who was the contracting party. Accordingly, I grant special leave to appeal.
[25] In granting leave, I acknowledge the serious delay. Mr Jones says that due to his mental health it is only now that he has found some assistance with filing documents and is in a position to deal with the substance of the issues and the Court process. In all the circumstances, and with some hesitation, I am prepared to look past the delay.
Security for costs
[26] After the hearing, Mr Delic for ASL filed a memorandum raising the issue of security for costs on appeal in the event that special leave to appeal is granted. I do not propose to grant security for costs without hearing from Mr Jones on that issue.
[27] By r 20.13 of the High Court Rules 2016, unless the appellant is legally aided, there is a presumption that the appellant will be required to provide security for the costs of the appeal in the event that it is unsuccessful. This is a matter that is to be addressed at the case management conference relating to the appeal which I allocate below. The parties should have the opportunity to be heard on the question of security.11 Mr Jones should be aware that under r 20.13 security for costs is the default and is likely to be ordered.
[28] It will also be important that Mr Jones meets the directions made below and those that will be made at the case management conference.
10 Roberts v Thompson (1995) 2 NZPC 446 (HC); and Eastridge Ltd v Oceanic Life Ltd (1997) 2 NZPC 651 (HC).
11 Gorman, above n 9, at HR20.13.01.
Result and next steps
[29]I grant special leave to appeal.
[30]I make the following directions:
(a)Mr Jones is to file and serve a notice of appeal by 5 pm on 10 April 2024.12 The notice of appeal is to be filed in the High Court at Hamilton with a copy filed in the District Court at Hamilton.
(b)The matter is allocated a case management conference for the appeal on 24 April 2024 at 9.00 to address the matters in Schedule 6 of the High Court Rules, including security for costs.
[31] Mr Jones has been successful in the application, but I do not award costs given that he is being granted an indulgence and is self-represented.
Anderson J
12 Refer to r 20.9 of the High Court Rules 2016.
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