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Mills v Dalzell

Mills v Dalzell

Case [2023] NZCA 458 20 September 2023

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA557/2022
[2023] NZCA 458

BETWEEN	LYNETTE JOY MILLS AND CARL JAMES PETERSON Applicants
AND	KELLY DALZELL First Respondent TRACEY LEVENBACH Second Respondent ASB BANK LIMITED Third Respondent GRAHAM HOWARD MILLS Fourth Respondent JOHN LEVENBACH Fifth Respondent CAROL KRAMMER Sixth Respondent

Court:	Mallon and Wylie JJ
Counsel:	Applicants in person S C D A Gollin and S L Michelsen for First and Third Respondents No appearance for Second Respondent J R Sparrow and S T Hartley for Fourth Respondent B R Webster and K B Perrett for Fifth and Sixth Respondents
Judgment: (On the papers)	20 September 2023 at 10 am

JUDGMENT OF THE COURT

A The application for an extension of time is declined.

BThe applicants must pay the respondents (save for the second respondent) costs for a standard interlocutory application on a band A basis and usual disbursements as set out in [30].

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

The applicants, Lynette Mills and Carl Peterson, seek an extension of time, pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules), to apply for the allocation of a hearing date and file their case on appeal, and to pay security for costs. In short, they say that actions taken by the fourth respondent, Graham Mills, have prevented them from selling a property and generating funds to meet their obligations and that they should not be required to comply with r 43(1) or pay security for costs pending the High Court’s final determination of an application they have made to stay a costs award made against them.
The application is opposed by the respondents (other than the second respondent who, we are advised by counsel, is deceased). The respondents say that the applicants have failed to diligently prosecute their appeal. They say that there is no good reason given by the applicants for their failure to comply with the relevant rules and pay security, and that, in any event, the applicants’ proposed appeal lacks merit.

The factual background

The background to this matter was partially set out by Associate Judge Johnston in his judgment released on 23 September 2022 which is the subject of the proposed appeal.[1] We adopt his analysis of the factual background:[2]
[1]Mills v Dalzell [2022] NZHC 2439.
[2]Footnotes omitted.
[11]     The background to this litigation is not without its complications. There is a considerable amount of affidavit evidence before the Court. However, in the end, the material facts are clear enough.
[12]     Mr Mills and Ms Mills were both domestic and business partners. They farmed two properties. They banked with ASB [Bank Ltd (the ASB)] in Nelson. They operated … a joint current account … and term loan accounts. ASB held all obligations first ranking mortgage securities over their properties.
[13]     Although Mr Mills and Ms Mills were not married, they used the same surname. Mr Mills adopted Ms Mills’ surname. …

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 Mills v Dalzell

Details

AGLC: Mills v Dalzell [2023] NZCA 458
Case: [2023] NZCA 458
Decision Date: 20 September 2023 at 10 am

CaseChat Overview and Summary

The applicants, Lynette Mills and Carl Peterson, sought an extension of time to file their case on appeal and pay security for costs. This appeal was against a judgment of the High Court which had dismissed their claims and awarded costs against them. The respondents opposed the application on the basis that the applicants had failed to diligently prosecute their appeal and had not provided a good reason for the delay in complying with their appeal obligations. The Court of Appeal found that the applicants had not provided a good reason for their delay and had failed to diligently prosecute their appeal. The Court noted that the applicants had already been granted several extensions of time and had shown no urgency in complying with their appeal obligations. The Court also noted that the proposed appeal lacked merit as the applicants' claims had already been struck out by the High Court and the applicants had been awarded increased costs. The Court declined the application for an extension of time and ordered the applicants to pay costs to the respondents.

Orders