Jung v Templeton - [2012] NZCA 172

IN THE COURT OF APPEAL OF NEW ZEALAND

CA837/2011
[2012] NZCA 172

BETWEEN DYLAN DAE BONG JUNG AND YANG HEE SHIN
Applicants

AND WARREN GEORGE CROFT TEMPLETON
Respondent

Hearing: 3 April 2012

Court: Ellen France, Harrison and White JJ

Counsel: D D B Jung in person
N Till QC for Respondent

Judgment: 4 May 2012 at 3 p.m.

JUDGMENT OF THE COURT

AThe application for an extension of time is dismissed.
BThe applicants must pay the respondents costs for a standard application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Ellen France J)

Introduction

This is an application for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 to appeal a decision of Venning J. Venning J rejected the applicants’ claim that the respondent breached the duty he owed to them as counsel.[1]

Background

[1] Jung v Templeton HC Auckland CIV-2007-404-5383, 5 November 2009.

The applicants, Dylan Dae Bong Jung and Yang Hee Shin, bought a unit subject to a building inspection. The report resulting from that inspection said the unit was in good condition but identified remedial work that needed to be done. The applicants did not follow up potential leaking/water damage issues apart from trying to negotiate a lower price. The applicants instructed their solicitors to make the sale unconditional. After settlement, it became apparent that the unit was leaky, and the cost of repairs was estimated at $125,000 plus GST.
Ultimately, the applicants bought proceedings in the High Court against the Auckland City Council in relation to the unit. The legal services provided by the respondent, Warren Templeton, related to that claim. The matter went to mediation resulting in a settlement agreement. The applicants subsequently claimed that agreeing to the settlement was a mistake. They blamed the respondent. In particular, the applicants said Mr Templeton did not rebut the Council’s allegation of contributory negligence against the applicants, a claim made during the course of the mediation.
As noted, Venning J rejected the claim against the respondent. The application for an extension of time to appeal against this decision is opposed.

Discussion

The test for whether an extension of time to appeal should be granted under r 29A is as expressed in My Noodle Ltd v Queenstown-Lakes District Council:[2]
A number of factors are relevant to a decision as to whether time to appeal should be extended, including the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay: ... . The overall test, however, is whether granting an extension would “meet the overall interests of justice”: Havanaco Ltd v Stewart (2005) 17 PRNZ 622 at [5] (CA).
[2]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].
The proposed appeal is two years out of time. The applicants say first that there was a delay in obtaining the “original conveyance file”…

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 Jung v Templeton

Details

AGLC: Jung v Templeton [2012] NZCA 172
Case: [2012] NZCA 172
Decision Date: 4 May 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Dylan Dae Bong Jung and Yang Hee Shin against Warren George Croft Templeton. The applicants sought an extension of time to appeal a High Court decision rejecting their claim that the respondent breached his duty as their counsel. The applicants had purchased a unit that was later found to be leaky, and they pursued legal action against the Auckland City Council. They subsequently claimed that the respondent did not adequately rebut allegations of contributory negligence during mediation, leading to an unfavorable settlement. The High Court rejected their claim against the respondent, and the applicants now sought to appeal this decision.

The court had to determine whether to grant the applicants an extension of time to appeal, considering factors such as the reason for the delay, the length of the delay, the conduct of the parties, and the extent of any prejudice caused by the delay. The court had to balance these factors against the overall interests of justice.

The court found that the applicants' proposed appeal was two years out of time, with no adequate explanation for the significant delay. The applicants claimed that the delay was due to obtaining the original conveyance file and their lawyer's failure to file an appeal when instructed. However, even if the lawyer was at fault, the appeal would have been nearly five months out of time. The court also noted that the applicants' proposed appeal lacked merit, as it was based on claims of forgery and perjury, which would not have affected the outcome of the High Court decision.

The Court of Appeal dismissed the application for an extension of time, stating that it was not in the interests of justice to grant such an extension. The applicants were ordered to pay the respondents' costs for a standard application on a band A basis and usual disbursements.

Orders