Michael James McFadden v Keith Albert Allott, Beverley
[2001] NZCA 290
•17 September 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA143/01 |
| BETWEEN | MICHAEL JAMES MCFADDEN WILLIAMS |
| Appellant |
| AND | KEITH ALBERT ALLOTT, BEVERLEY GEORGINA ALLOTT AND ROGER KEITH ALLOTT |
| Respondents |
| Hearing: | 17 September 2001 |
| Coram: | Richardson P Gault J Keith J |
| Appearances: | C J O’Neill and D J C Russ for Applicant D P Robinson for Respondents |
| Judgment: | 17 September 2001 |
| JUDGMENT OF THE COURT DELIVERED BY GAULT J |
The proposed appellant, Mr Williams, seeks special leave to appeal out of time under r5 of the Court of Appeal Rules from the judgment of John Hansen J delivered in the High Court at Dunedin on 14 November 2000.
The background facts as far as they bear upon this application are found in the first paragraph of the judgment as follows:
On the 16th day of October 1997 the plaintiffs entered into a contract for the sale of their farm near Middlemarch, Strath Taieri. The purchase price of $1,885,000.00 was at a considerable premium over its value as farmland. The property attracted the premium because of deposits of a mineral known as diatomite under the land. Some of it was exposed. The extent of the deposits, and the value of the deposits is a matter of some dispute, although irrelevant for present purposes. The purchaser was the defendant’s father. On the last day required for confirmation of the contract it was confirmed in writing by the defendant, who also confirmed he was the principal of his father, and a written document recorded that on receipt of the $30,000 the father was to be released from liability under the contract.
Having confirmed the contract Mr Williams failed to effect settlement. The date for settlement was extended but Mr Williams was not able to meet the extended settlement date.
The proposed respondents began proceedings to enforce their rights under the contract. Their actions led to the present dispute between the parties which arose because Mr Williams alleged that he only confirmed the contract because one of the respondents, Mr Allott, and his solicitor, assured him that no steps would be taken to enforce the contract in the event of default. He alleged that this was done orally on two occasions. This was said to be either an oral variation of the written contract or alternatively an oral collateral contract. John Hansen J found that the dispute raised straightforward questions of credibility and he resolved these resoundingly in favour of the proposed respondents. He therefore gave judgment for the plaintiff assessing damages at $716.001.00. In quantifying the damages the Judge noted that no real issue had been taken with the market valuation of the property of $1,200.000. That figure exceeded the valuation on which the claim had been based, but represented the purchase price in a conditional contract for sale and purchase extant at the time of the trial.
The judgment was sealed on 14 November 2000. Thereafter the proposed respondents sought to enforce it. To that end they commenced bankruptcy proceedings against Mr Williams. A stay of execution of those proceedings has been granted pending the outcome of this application.
Mr Williams’ explanation for not appealing within the 28 day time period is that he was advised by his solicitors that appealing would be a waste of time so that he did not do so. He goes on to say, however, that he has since obtained alternative legal advice that he has an arguable appeal. That is no sufficient explanation for a delay of more than six months after the time for appealing expired. That period exceeds the whole period within which an appellant must file a case on appeal and seek a fixture for a hearing under r10.
It emerges that it was only after steps taken in execution of the judgment reached the point of substituted service of a bankruptcy application in June 2001 that the alternative legal advice was sought. In fact a bankruptcy notice had been served on 31 January 2001 so that Mr Williams allowed more than four months to pass before seeking the alternative legal advice. That delay is unexplained. The first the proposed respondents heard of the possibility of appeal was in the course of a hearing before a Master in the bankruptcy proceedings on 5 June 2001. Lack of diligence of this kind is not to be rewarded with indulgence of the kind now sought.
This is not a case in which new matters have emerged. We say that notwithstanding the statements in Mr Williams’ affidavit presented in support of the application. It is clear to us from John Hanson J’s judgment that Mr Williams, by his counsel, had every opportunity to raise at the trial matters he now seeks to advance, but that was not done. From the written outline of the six proposed grounds of appeal we see little merit in them in any event.
Accordingly we are satisfied that it is in the interests of justice for leave to be refused.
The application is dismissed.
The respondents are entitled to costs which we fix at $2,000 together with reasonable disbursements including costs of travel and accommodation of counsel fixed, if necessary, by the Registrar.
Solicitors
Dean Russ, Christchurch, for Applicant
Wilkinson Adams, Dunedin, for Respondents
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