Mauger v Apatu - [2013] NZCA 262

IN THE COURT OF APPEAL OF NEW ZEALAND

CA10/2013
[2013] NZCA 262

BETWEEN	WINIPERE EVA MAUGER Applicant
AND	NATHAN WIRIHANA APATU, RENATA ROBIN APATU AND KATHERINE LOUISE BATES Respondents

Hearing:	13 May 2013 and 13 June 2013 (by telephone)
Court:	Arnold, Ellen France and Stevens JJ
Counsel:	D J O’Connor for Applicant N T Gray for Respondents
Judgment:	26 June 2013 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted. Timetabling directions are made as set out below at [23].
BNo order as to costs.

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REASONS OF THE COURT

(Given by Ellen France J)

Introduction

This is an application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal a decision of Williams J relating to costs.[1] The costs award was made in the context of unsuccessful proceedings brought by the applicant, Mrs Mauger, and her brother, Ashley Apatu, relating to the disposition of the estate of the parties’ father, Wirihana Apatu, who died in 1970. The respondents were trustees and executors of their father’s estate.

Background

[1]Apatu v Apatu HC Napier CIV-2007-441-823, 3 November 2011.

The proceedings brought by Mrs Mauger and Ashley were filed in 2007. Their claims, variously brought against one or other or all of the respondents, were based on alleged breach of trust or fiduciary duty. Mrs Mauger also brought some claims individually. Some of her claims were abandoned. As we have foreshadowed, those remaining were dismissed by Williams J after trial in a judgment delivered on 10 May 2011.[2]
[2]Apatu v Apatu HC Napier CIV-2009-441-515, 10 May 2011.
Subsequently, in the judgment delivered on 3 November 2011, Williams J granted an application for indemnity costs made by the respondents against Mrs Mauger and Ashley. Costs of $85,000 were awarded in favour of the respondents.[3] The Judge also made an order that Mrs Mauger and Ashley were jointly liable to the respondents for these costs.
[3]Apatu v Apatu, above n 1. $41,000 of these costs were awarded in favour of Kenneth Apatu who is not a named party to the present proceedings in this Court.
When the costs award was not paid, the respondents successfully applied to bankrupt Ashley but were unsuccessful in their application to bankrupt Mrs Mauger for the outstanding debt. After various procedural skirmishes, in a judgment delivered on 6 December 2012, Associate Judge Gendall refused to make an order adjudicating Mrs Mauger bankrupt on the basis Mrs Mauger was able to pay her debts.[4] The respondents have appealed against that decision to this Court. The case on appeal for that appeal has been filed but the matter does not have a fixture date.
[4]Mauger v Apatu [2012] NZHC 3270.
On 12 February 2013, Mrs Mauger filed an application for extension of time to appeal against the costs decision of Williams J. The application is opposed.

The application in issue

The applicant accepts that the delay in this case is…

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 Mauger v Apatu

Details

AGLC: Mauger v Apatu [2013] NZCA 262
Case: [2013] NZCA 262
Decision Date: 26 June 2013 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Winipere Eva Mauger, the applicant, filed an application for an extension of time to appeal a decision made by Williams J, relating to costs. The respondents, Nathan Wirihana Apatu, Renata Robin Apatu, and Katherine Louise Bates, opposed the application. The Court of Appeal, comprising Arnold, Ellen France, and Stevens JJ, heard the case on 13 May 2013 and 13 June 2013 (by telephone). The applicants were represented by D J O’Connor, and the respondents were represented by N T Gray. The judgment was delivered on 26 June 2013 at 11.30 am. The Court granted the application for an extension of time and made timetabling directions. No order was made as to costs.

The legal issues in this case were whether the Court of Appeal should grant an extension of time for the applicant to appeal the decision of Williams J relating to costs, and whether the applicant's explanation for the delay was sufficient. The Court considered factors such as the reasons 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 found that the applicant's explanation for the delay was not adequate, but the length of the delay was significant. The merits of the proposed appeal were difficult to assess, but the Court considered that the overall interests of justice favoured granting an extension of time to appeal. The Court ordered that any application to adduce new evidence on the appeal by the applicant must be filed and served by 30 July 2013, and any application in response by the respondents must be filed and served by 30 August 2013.

The Court of Appeal granted the application for an extension of time to appeal the decision of Williams J relating to costs. The Court found that the applicant's explanation for the delay was not adequate, but the length of the delay was significant. The Court considered that the overall interests of justice favoured granting an extension of time to appeal. The Court made timetabling directions for the parties to file any new evidence by specific dates. No order was made as to costs. The Court also expressed concern about the possibility of further costly litigation and urged the parties to avoid that result.

Orders