Marsman, Bleidistel and THK Trustees Limited v Nukrake

[2008] NZCA 104

IN THE COURT OF APPEAL OF NEW ZEALAND

CA606/07
[2008] NZCA 104

BETWEENWILLEM ROBERT MARSMAN, UTA BLEIDISTEL AND THK TRUSTEES LIMITED

Applicants

ANDROLAND JOHANNES NIJKRAKE

Respondent

Hearing:21 April 2008

Court:Glazebrook, O'Regan and Ellen France JJ

Counsel:D J King for Applicants

S A Barker for Respondent

Judgment:29 April 2008 at 2.30 pm

JUDGMENT OF THE COURT

A        Special leave to appeal out of time is granted.

B        Costs are reserved.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       The applicants wish to appeal against a decision of the High Court.  They failed to file and serve a notice of appeal within the 20 working day period provided for in r 29(1) of the Court of Appeal (Civil) Rules 2005.  They now seek special leave under r 29(4) to appeal out of time. 

The High Court decision

[2]       The decision of the High Court against which the applicants wish to appeal is a decision of Associate Judge Gendall, in which he upheld an application by the respondent that a caveat lodged against the applicants’ property not lapse: HC NP CIV 2007-443-386 26 September 2007.  The caveatable interest claimed by the respondent is an interest by virtue of a constructive trust based on an allegation by the respondent that Mr Marsman misappropriated trust money from a Canadian company, Rowi Meat Packers Inc, which, it is alleged, partially funded the purchase or improvements of the caveated property.  The respondent and Mr Marsman both held shares in Rowi Meat Packers.  A civil claim based on the above allegations is currently proceeding in the Netherlands but it appears that the relevant law for the resolution of the claim is that of British Columbia, Canada.

Late filing

[3]       The lawyer for the applicants filed a notice of appeal with this Court one day after the expiry of the 20 working day period within which an appeal had to be brought.  This was as a result of an oversight by the lawyer who miscalculated the date on which the appeal period ended.  The policy of the Court in relation to such applications is summarised in its decision in Havanaco Ltd v Stewart (2005) 17 PRNZ 622 at [22] in these terms:

Normally, where the delay in bringing an appeal is the fault not of the intending appellant but rather of his or her lawyer and where the delay is not significant, this Court will generally be inclined to grant special leave.  But this Court will not grant an indulgence in cases where the proposed appeal has no merit.

[4]       Counsel for the respondent, Mr Barker, responsibly accepted that the delay was minimal in this case, resulted from an error by the applicants’ lawyer for which the applicants had no responsibility and there was no prejudice to the respondent arising from the delay.  He accepted that, once the error was discovered, steps had been taken promptly to rectify it by bringing the present application.  However, he argued that the proposed appeal was without merit, and on the basis of the decision in Havanaco submitted that leave should not be granted for that reason.

Merits

[5]       The outcome of the present application therefore turns on the merits of the proposed appeal.  However, the assessment of the merits of the appeal is complicated by the fact that the applicant has indicated that he will seek leave to adduce evidence in support of the appeal, and the chances of success of the appeal will depend substantially on the outcome of that application.

New evidence

[6]       The proposed new evidence is expert evidence by a British Columbian lawyer as to the law of British Columbia relating to limitation.  It is necessary to recite some of the background to the case to understand the significance of this proposed evidence.

[7]       As noted earlier, the underlying dispute between the respondent and Mr Marsman concerns matters arising from their involvement with a meat company in British Columbia.  The respondent seeks redress in the Courts of the Netherlands, but the Netherlands Court is apparently proceeding on the basis that the law under which it must determine the dispute is that of British Columbia.  One of the matters at issue is whether the British Columbia Limitation Act 1996 extinguished the respondent’s claim. 

[8]       Mr Marsman adduced evidence in the High Court from Arthur Close QC, a retired British Columbian barrister, as to the British Columbian law of limitation.  Mr Close gave his opinion on the application of the British Columbian Limitation Act to the dispute, and on the basis of his opinion it was argued that the respondent’s claim against Mr Marsman was statute barred under British Columbian law.  However, the affidavit of Mr Close predated an affidavit of Mr Marsman in which he acknowledged making certain payments to the respondent.  It was argued in the High Court that these payments constituted “confirmation” for the purposes of the British Columbian Limitation Act, and that the effect of confirmation was to cause the limitation period to recommence.  That led to the Associate Judge finding that, if the claim was governed by British Columbian law, it was reasonably arguable that it had not been statute barred.

[9]       Mr King indicated that Mr Marsman will seek leave to adduce new expert evidence on British Columbian Limitation law, to the effect that the payments made by Mr Marsman did not amount to confirmation for the purposes of the British Columbian Limitation Act.  That evidence will be used to support an argument that it is not reasonably arguable that the respondent’s claim against Mr Marsman is not statute barred under British Columbian law.

[10]     Of course, this proposed new evidence will not be “fresh” in the sense that it would have been available at the time of the High Court hearing, which means that the application to adduce new evidence will face a high hurdle.  It is apparent that the merits of the appeal will depend largely on the success or failure of the application to adduce new evidence.  Mr Barker urged us to conclude that the application to adduce new evidence would fail and consequentially, that the appeal was so lacking in merit that leave to appeal should not be granted, citing Havanaco.  He argued that the application to adduce new evidence should have been made prior to the hearing of the leave application, so that a proper assessment of the merits could be made at the leave stage.

[11]     Mr King said he did not consider it appropriate to seek leave to adduce new evidence on an appeal when his client did not have leave to appeal.  As a general proposition we agree, but we think there is some merit in Mr Barker’s suggestion that, where the merits of the appeal are a relevant matter in the context of a leave application, and those merits depend on the admissibility of evidence, it would be preferable for the Court to be able to address the admissibility issue at the leave stage.

Decision

[12]     However, we must deal with the case as it has been presented.  We have decided that, on balance, it is appropriate to grant leave in this case, on the basis that it is not possible for us to make a proper evaluation of the likelihood of the success of the application to adduce new evidence and, therefore, of the merits for the appeal.  Given the minimal delay in filing the notice of appeal, the prompt action taken to rectify the late filing of the notice, and the lack of prejudice to the respondent, we have decided to grant leave.

Further steps

[13]     Mr King should now file and serve its notice of appeal and an application to adduce new evidence.  This should be done by 16 May 2008.  The Registry should set a hearing date at which both the application to adduce new evidence and the merits of the appeal should be dealt with together. 

Costs

[14]     We do not propose to make an order for costs at this stage, because we believe it would be more appropriate to assess costs on an overall basis once the application to adduce new evidence and the merits of the appeal have been determined.  We therefore reserve costs.

Solicitors:
Dennis King Law, New Plymouth for Applicants
Buddle Findlay, Wellington for Respondent