Nee Harland v Asset Finance Limited
[2012] NZCA 205
•22 May 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA211/2011 [2012] NZCA 205 |
| BETWEEN JENNY LUCY NEE HARLAND |
| AND ASSET FINANCE LIMITED |
| Court: Arnold, Ellen France and White JJ |
| Counsel: J L Nee Harland in person |
| Judgment: 22 May 2012 at 3.00pm |
(On the papers)
JUDGMENT OF THE COURT
AThe application for an extension of time to file a case on appeal is declined.
BThe appellant must pay the respondent costs for a standard application on a band A basis together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by White J)
By notice of appeal dated 11 April 2011 the appellant, Mrs Nee Harland, lodged an appeal against a judgment of Chisholm J in the High Court declining to grant her an interim injunction.[1] Mrs Nee Harland had sought the interim injunction to prevent the respondent, Asset Finance Ltd, the mortgagee of her property in Havelock North, from registering a transfer of the property to a third party following a mortgagee sale.
[1] Nee Harland v Asset Finance Ltd HC Napier CIV-2011-441-207, 7 April 2011.
Mrs Nee Harland also applied to this Court for a stay of proceeding pending the determination of her appeal. That application, which was treated as an application for interim relief under r 12(3) of the Court of Appeal (Civil) Rules 2005, was declined by this Court in a judgment delivered on 13 April 2011, with reasons given on 20 April 2011.[2]
[2] Nee Harland v Asset Finance Ltd [2011] NZCA 156.
On 10 January 2012 Mrs Nee Harland applied for an extension of time to file a case on appeal on the grounds that:
(a)negotiations were taking place between herself and Asset Finance Ltd; and
(b)there were live issues still before the High Court which affected her appeal and which had not yet been settled.
Asset Finance Ltd opposed the application on the grounds that:
(a)the transfer of Mrs Nee Harland’s property in exercise of the mortgagee’s power of sale was registered on 15 April 2012; and
(b)the effect of the registration of the transfer was to render the appeal nugatory.
In response, Mrs Nee Harland did not dispute that the transfer had been registered, but maintained that she still wished to pursue her appeal.
Both parties have indicated that they wish the Court to determine Mrs Nee Harland’s application “on the papers”.
Once this Court dismissed Mrs Nee Harland’s application for interim relief under r 12(3) and the transfer was registered on 15 April 2012 her appeal against the decision of Chisholm J declining her application for an interim injunction was rendered nugatory. No case on appeal is required and an extension of time for filing one would be pointless.
As recognised by Chisholm J in his judgment[3] and by this Court in its judgment,[4] Mrs Nee Harland may, if she wishes, pursue her claim for damages against Asset Finance Ltd in the High Court.
[3] At [28].
[4] At [31].
The application for an extension of time is therefore declined. Mrs Nee Harland must pay Asset Finance Ltd costs for a standard application on a band A basis together with usual disbursements.
Solicitors:
Osborne Attewell Clews, Whakatane for Respondent
0