Misbin and Misbin v USG Interiors Pacific Limited

[2009] NZCA 379

IN THE COURT OF APPEAL OF NEW ZEALAND

CA799/2008
[2009] NZCA 379

BETWEENHARVEY ALLEN MISBIN

First Appellant

ANDJUBITA HAYDEE MISBIN

Second Appellant

ANDUSG INTERIORS PACIFIC LIMITED

Respondent

Hearing:18 August 2009

Court:Glazebrook, Robertson and Ellen France JJ

Counsel:E Orlov and N Adjei for Appellants

M R Crotty and G A Lawery for Respondent

Judgment:26 August 2009 at 4.00 pm

JUDGMENT OF THE COURT

A        The application for an extension of time is dismissed.

BThe appellants must pay to the respondent’s costs for a standard application on a Band A basis plus usual disbursements.

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REASONS OF THE COURT

(Given by Glazebrook J)

[1]       Mr and Mrs Misbin have purported to appeal against a decision of Cooper J of 3 November 2008:  ANZA Distributing New Zealand Ltd (In Liquidation) v USG Interiors Pacific Ltd HC AK CIV 2007-404-3474.

[2]       They apply for an extension of time under r 43(2) of the Court of Appeal Rules (Civil) 2005, as no steps have been taken in relation to the appeal.

[3]       The application is declined for the following reasons.

[4]       We accept the respondent’s submission that Mr Misbin has no standing to appeal as he was not a party to the High Court proceedings.  The plaintiff in the High Court was ANZA.  That company is in liquidation and the liquidator has not consented to the appeal (or indeed to the proceedings before Cooper J).

[5]       The position with Mrs Misbin may not be so clear cut.  She, unlike Mr Misbin, was a director and shareholder of ANZA and Mr Orlov says that there was an application by her to bring proceedings on ANZA’s behalf which was wrongly brushed aside by Cooper J.

[6]       Even if this is the case, as the respondent has pointed out, nothing has been put before the Court to suggest that there is any realistic prospect that Mrs Misbin will be able to pursue her appeal.  It is not appropriate to grant an extension of time in such circumstances.

[7]       In any event, we are by no means convinced that there is any merit in the appeal.  Mr and Mrs Misbin assert that the District Court was misled in its grant of summary judgment against ANZA and that this meant Cooper J should have set the judgment aside.  The respondent strenuously denies this allegation.

[8]       The entry of summary judgment was, however, agreed to by ANZA’s then counsel.  This means that it was accepted before the District Court that ANZA owed the amounts in question.  On its face, that justified the entry of summary judgment.  The respondent was entitled to rely on the actions of ANZA’s counsel and there was no need to put any further documentation before the Court.  If counsel acted without authority, that would be a matter for Mr and Mrs Misbin to take up with counsel.

Result

[9]       The application for an extension of time is dismissed.

[10]     The appellants must pay to the respondents costs for a standard application on a Band A basis plus usual disbursements.

Solicitors:
Botany Law, Auckland for Appellants
Russell McVeagh, Auckland for Respondent