Mahon v Waimauri Limited - [2020] NZCA 580

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA338/2020
[2020] NZCA 580

BETWEEN	NEVILLE CHRISTOPHER MAHON First Applicant BEACH ARENA LIMITED Second Applicant
AND	WAIMAURI LIMITED First Respondent TIMOTHY LAIRD EDNEY Second Respondent WAIKORO LIMITED Third Respondent

Court:	French and Collins JJ
Counsel:	First Applicant in person No appearance for Second Applicant D J Chisholm QC and M J W Lenihan for Respondents
Judgment: (On the papers)	23 November 2020 at 9.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to file the case on appeal and apply for allocation of a hearing date is granted.
BThe case on appeal must be filed and allocation of a hearing date must be applied for by 15 December 2020.
CCosts are reserved pending determination of the appeal.
____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

The applicants apply for an extension of time for filing the case on appeal.[1] They have also informally applied for the allocation of a hearing date. Both applications are opposed.
[1]Court of Appeal (Civil) Rules 2005, r 43(3).
Mr Mahon is acting for himself and he is purporting to act for the second applicant, Beach Arena Ltd (Beach Arena). Mr Mahon cannot act for the company and must cease doing so.[2]
[2]Re G J Mannix Ltd [1984] 1 NZLR 309 (CA); and Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd [2015] NZCA 491, (2015) 23 PRNZ 141 at [8]–[10].
The appeal is from a decision of Muir J delivered on 29 May 2020.[3]
[3]Waimauri Ltd v Mahon [2020] NZHC 1170.
The litigation concerned a hotel and two adjoining development properties in Beach Road, Auckland. The protagonists are Mr Mahon and Mr Edney, who had engaged in business ventures together for more than 30 years.
Waimauri Ltd (Waimauri) sued Mr Mahon and Beach Arena for breaches of a lease and loan agreement executed when delays occurred in developing the hotel and adjacent properties. Mr Mahon and Beach Arena counterclaimed and pleaded Mr Edney and Waimauri had breached a collateral “clean slate” agreement varying the terms of the lease and loan agreement. They also counterclaimed that the conduct of Mr Edney and Waimauri was so egregious that they should be estopped from recovering damages.
Muir J gave judgment in favour of Waimauri against Mr Mahon in the sum of $394,245.75 plus interest and dismissed the counterclaim.
The grounds of appeal allege that Muir J erred when dismissing the “clean slate” defences and the counterclaim advanced by Mr Mahon and Beach Arena.

Steps taken

The notice of appeal was filed on 29 May 2020, the last day for filing an appeal as of right.
On 2 July 2020, a Deputy Registrar issued a notice that the case on appeal had to be filed and a fixture date applied for by 29 September 2020 in order to comply with r 43(1) of the Court of Appeal (Civil) Rules 2005. Security for costs was…

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 Mahon v Waimauri Limited

Details

AGLC: Mahon v Waimauri Limited [2020] NZCA 580
Case: [2020] NZCA 580
Decision Date: 23 November 2020 at 9.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Neville Christopher Mahon and Beach Arena Limited sought an extension of time to file their case on appeal against Waimauri Limited, Timothy Laird Edney, and Waikoro Limited. The original appeal was from a High Court decision in a dispute involving a hotel and two adjoining properties in Auckland. Waimauri sued Mahon and Beach Arena for breaches of a lease and loan agreement, while the latter counterclaimed that Waimauri and Edney breached a collateral agreement and should be estopped from recovering damages. The High Court dismissed the counterclaim, leading to the appeal.

The central legal issues in this case were whether the Court of Appeal should grant an extension of time for filing the case on appeal and applying for a fixture date, given the delay in doing so. The Court of Appeal had to consider the length of the delay, the reasons provided for the delay, the conduct of the parties, any prejudice or hardship to the respondents, and the significance of the issues raised by the proposed appeal. The Court of Appeal ultimately had to determine what the interests of justice required.

The Court of Appeal granted the application for an extension of time, finding the delay to be concerning but not so long as to warrant declining the application outright. The reasons for the delay were considered reasonable, and while the Court acknowledged the prejudice suffered by the respondents, it did not find it to be significant enough to deny the application. The Court also noted that the appeal was not clearly hopeless, and therefore, the application should be granted. The Court ordered that the case on appeal must be filed and allocation of a hearing date must be applied for by 15 December 2020. Costs were reserved pending the determination of the appeal.

Orders