Khan v Reid - [2010] NZCA 391

IN THE COURT OF APPEAL OF NEW ZEALAND
CA241/2010
[2010] NZCA 391
BETWEENYOUMNA KHAN

First Applicant
ANDSHER AFZAL KHAN

Second Applicant

ANDKEITH WILLIAM REID

Respondent

Hearing:17 August 2010

Court:Arnold, Ellen France and Stevens JJ
Counsel:S A Khan (in person) for Applicants

M R T Colthart (via video link) for Respondent

Judgment:23 August 2010 at 2.30 pm

JUDGMENT OF THE COURT

A The application is dismissed.
BThe applicants must pay the respondent costs on a band A basis for a standard application and usual disbursements.

REASONS OF THE COURT
(Given by Stevens J)
Introduction
[1]        The applicants, Mr and Mrs Khan, have applied for an extension of time to appeal against a judgment of Allan J given in the High Court at Auckland on 30 October 2009.[1] The case related to a claim in tort and/or contract by the Khans (the applicants) against the respondent, a lawyer who had previously acted for Mrs Khan. Initially, the applicants filed an application for leave to appeal against this decision by lodging it in the High Court. On 17 February 2010, the matter came before Cooper J who explained to the applicants (who were unrepresented), that any notice of appeal would need to be filed in the Court of Appeal. Cooper J also explained that, given the time that had elapsed, the applicants would need to make an application for an extension of time.
[1]      Khan v Reid HC Auckland CIV-2009-404-1721, 30 October 2009.
[2]        The notice of appeal and application for extension of time were filed in this Court on 16 March 2010. The proposed grounds of appeal are that:
(a)The learned Judge made error of fact and law wrongly applied legal test 4 limitations Act 1950 to struck out the plaintiff claim. As matter of fact the plaintiff’s claim is not statute barred under s 28 of the limitation Act 1950, which learned Judge failed to take in to account. [sic]
(b)The plaintiff’s have serious arguable case against defendant conspiracy with Accident Compensation Corporation in 1996, which was discovered by plaintiff’s in 2005. [sic]

[3]        The issue for this Court is whether the applicants have established any proper basis for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005.
Factual background
[4]        The first applicant, Mrs Khan, was injured at work in 1993. She sought and obtained weekly compensation payments from the Accident Compensation Corporation (ACC). Subsequently, ACC discovered that Mrs Khan’s statement of her earnings at the time of the accident was inaccurate. In April 1996, the first applicant and her husband, Mr Khan, were arrested on fraud charges and ACC determined to cease the weekly payments. The applicants were ultimately convicted of using documents with intent to defraud in October 1997.
[5]        The respondent, Mr Reid, was instructed to act for the applicants in May 1996 to deal with the ACC matter. Other lawyers dealt with their criminal prosecution. On behalf of Mrs Khan, Mr Reid sought review of ACC’s decision to cease payments.…

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 Khan v Reid

Details

AGLC: Khan v Reid [2010] NZCA 391
Case: [2010] NZCA 391
Decision Date: 23 August 2010

CaseChat Overview and Summary

The applicants, Youmna and Sher Afzal Khan, sought an extension of time to appeal a decision of Allan J in the High Court at Auckland. The appeal related to a claim by the Khans against their former lawyer, Keith William Reid, who had acted for Mrs Khan in relation to a matter with the Accident Compensation Corporation (ACC). The applicants alleged that Mr Reid had been negligent in not advising them of a letter from ACC, which they claimed would have helped them avoid conviction in a criminal trial. Allan J dismissed the claim on the basis that it was statute-barred. The applicants sought an extension of time to appeal the decision, arguing that they had not known of the letter from ACC until 2004 and that Mr Reid had conspired with ACC. The Court of Appeal dismissed the application, finding that the proposed grounds of appeal were lacking in merit and that any delay in filing the appeal was too great to warrant an extension of time. The Court held that Allan J was correct to strike out the claim and that the applicants had not established any proper basis for an extension of time under the Court of Appeal (Civil) Rules 2005. The applicants were ordered to pay the respondent's costs on a band A basis for a standard application, together with usual disbursements.

Orders