Koene v Powell

[2004] NZCA 158

IN THE COURT OF APPEAL OF NEW ZEALAND

CA224/03

BETWEENFEMKE KOENE

First Appellant

ANDTOM KOENE AND INGRID KOENE

Second Appellant

s

ANDCEASAR KOENE

Third Appellant

ANDVINCENT MARK POWELL

Respondent

Hearing:19 July 2004

Coram:Anderson P
Glazebrook J
Hammond J

Appearances:  M Andrews (given leave to withdraw) for First Appellant

Ms Koene in person assisted by McKenzie Friend
R J Craddock QC and R A Hacking for Respondent

Judgment:26 July 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This is an application pursuant to r10 of the Court of Appeal (Civil) Rules 1997, subrules (1) and (2) of which provide as follows:

10     Appeal abandoned if not pursued

(1)     An appeal is to be treated as having been abandoned if the appellant does not, within 6 months after the appeal is brought, either—

(a)     Apply for a fixture and file the case on appeal; or

(b)     Apply for an extension of time for applying for a fixture and filing the case on appeal.

(2)     On an application under subclause (1)(b), the Court may extend, by such period as it thinks fit, the time for applying for a fixture and filing the case on appeal, and may from time to time further extend that period while the proceeding is pending.

[2]       The hearing of the application was preceded by a request on behalf of Ms Koene for an adjournment.  The circumstances were as follows.  On 14 June 2004 the Registry of this Court received a letter from Mr M Coldicutt of counsel for Ms Koene advising that he had lost contact with his client and sought leave to withdraw.  At about the same time Ms Koene contacted the Court to advise that her details were not to be disclosed to anyone and that she and her husband were dealing with the application.  The Court then advised that the appellant’s submissions were due on Wednesday 7 July.  At the request of Ms Koene’s husband this was extended by a day, but before the period expired Ms Koene’s husband made another application for adjournment.  That was considered, without being determined, by McGrath J who referred the matter to the President.  On 13 July the President declined the adjournment in the following terms:

I am not prepared to grant an adjournment.  The application is limited to a request for an extension of time.  The substantive merits of the appeal do not require extensive consideration.  The reasons for adjournment are not presently convincing.  Adjournment refused.

[3]       It is expedient at this stage to record that Ms Koene is the only appellant who has taken any interest in the appeal and who pursues the present application.  The judgment in respect of which the appeal is brought has in fact been satisfied by other appellants.  We will advert to the significance of that later in the judgment.

[4]       Upon the adjournment being refused, Ms Koene obtained assistance from solicitors and Mr Andrews as counsel in the preparation and filing of an affidavit in support of the application.  This was of limited help to the Court, indicating little more of relevance than that Ms Koene believed in the validity of her defence to the original proceedings and that she had not been in a position for personal and financial reasons, including shifting permanently from Auckland to Wellington to progress with the appeal as quickly as she would have liked.

[5]       The litigation itself began in the District Court when the respondent sued Ms Koene and members of her family in conversion when they appropriated and refused to deliver up assets, including business assets, of the respondent and alleged consequential financial loss for which damages were sought along with exemplary damages.  Ms Koene and her family had seized the chattels under the aegis of a Family Court order under the Domestic Violence Act 1995.  That order was promptly rescinded on the application of Mr Powell, by the same Family Court Judge who expressed concern about having been misled by Ms Koene.  We have not concerned ourselves with the details of that but the assumption can be made that the information placed before the Family Court was very misleading.  This is because it is difficult to see why an application for recovery of such chattels as gymnasium equipment, if any chattels at all, would warrant an ex parte response from a Court without even a Pickwick appearance.  The Judge ordered her to deliver the gymnasium equipment back to Mr Powell but she refused to comply and has never complied. 

[6]       Mr Powell subsequently obtained in the District Court a judgment by default in the form of an order for possession of the chattels.  He then obtained judgment upon formal proof for damages of $114,163.60 together with exemplary damages of $10,000 against Ms Koene and $5,000 exemplary damages against the other party.  In addition, costs of almost $16,500 were ordered. 

[7]       None of the defendants to Mr Powell’s litigation appealed against the District Court orders and he then registered his judgment for damages and costs in the High Court at Auckland, no doubt to facilitate enforcement of it.  The appellants then applied to the High Court for an order varying or setting aside the judgment.  That application was heard by Harrison J who dismissed it, delivering on 19 November 2003 extensive reasons for doing so.  That Judge discussed the case further in a judgment given on 5 December 2003 in the context of an application by Ms Koene for a stay of execution pending the determination of an appeal to this Court. 

[8]       In the High Court the appellants were represented by a Queen’s Counsel who, consistent with his usual propriety, acknowledged that there was no defence to the allegation of conversion.  The only contestable issue, then, as far as Ms Koene was concerned was the quantum of damages.  We do not intend to traverse the extensive factual context and reasoning of the learned High Court Judge, it being sufficient for our purposes to note that he saw no merit in any aspect of the application before him, as far as it related to Ms Koene and he dismissed the application with costs.

[9]       We think it not insignificant that in dealing with the subsequent application for stay Harrison J stated:

I do not accept that the appeal has been filed in good faith or with any intention to pursue it vigorously.  In my view this is just another step taken by the Koenes to avoid the consequences of an unappealed judgment given in the District Court at Waitakere more than a year ago.  Accordingly I dismiss the Koene’s application for a stay.

[10]     In the hearing before us Ms Koene’s submissions were considerably more extensive than relevantly informative.  We attempted to assist her to focus on essential issues by indicating that she should say why her delay in prosecuting the appeal should be excused and why she maintained the High Court was wrong to have dismissed the application to set aside the registered judgment.  Regrettably she was unable to assist us in those respects beyond the brief scope of her affidavit.  But what she did say served only to reinforce a perception of intransigent refusal to accept responsibility for her own conduct.

[11]     The submissions for the respondent can be briefly summarised in the following terms.  First, Ms Koene’s delay in prosecuting the appeal was inexcusable and was explicable in terms of Harrison J’s apprehension.  Second, Ms Koene’s conduct giving rise to the litigation was not such as to raise any concerns of injustice to her if the appeal were treated as having been abandoned.  Third, Ms Koene’s case in respect of damages was plainly lacking in merit.  Fourth, there could be no material advantage to Ms Koene even if her appeal were allowed to run and succeeded.

[12]     The basis of the fourth point mentioned above is that the judgment has now been satisfied by Ms Koene’s parents and there is nothing before the Court to suggest she is in any jeopardy of their suing her for contribution.  To the extent that this devolves into a submission that the wish to maintain the appeal has a more subtle motivation we would agree. 

Discussion

[13]     The policy which underlies r10 is that appeals should be pursued with diligence and if not the right of appeal is lost.  If a delay is reasonably excusable and an appeal has apparent merit then the interests of justice may warrant an extension of time.  But in the present case the delay has not been shown to be excusable and the case has no apparent merit.  The hoped-for appeal is against a discretionary order refusing to set aside a judgment, at best in respect of quantum, without any indications of manifest error by the learned District Court Judge in the computation of quantum.  Nor would even a successful appeal import any material advantage to Ms Koene because, as we have stated, the judgment debt has been paid and there is nothing to indicate any intention by Ms Koene’s parents to sue her for a contribution.  There is nothing which persuades us that as a matter of justice the appeal should remain extant.  The application by Ms Koene is accordingly dismissed.  There is no reason why costs should not follow the result and accordingly we make an order for costs in favour of Mr Powell against Ms Koene in the sum of $3,000 together with disbursements including the reasonable travel and accommodation expenses for one counsel as fixed by the Registrar.

Solicitors:
Shieff Angland, Auckland for Respondent