Nobilo v Nobilo

[2014] NZCA 250

IN THE COURT OF APPEAL OF NEW ZEALAND

CA198/2014
[2014] NZCA 250

BETWEEN	JOHN SAMUEL NOBILO Appellant
AND	DEBORAH KATHLEEN NOBILO Respondent

Court:

White, French and Miller JJ

Counsel:

G L Harrison for Appellant
G M Cameron for Respondent

Judgment:

(On the papers)

17 June 2014 at 4.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time for the filing of the appeal is granted.

BThe appellant is directed to file the case on appeal and seek a fixture for the hearing of the appeal by 27 June 2014.

CThe respondent must pay the appellant costs calculated as for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

1. The applicant, Mr Nobilo, seeks an extension of time to appeal against the decision of Associate Judge Abbott in the High Court at Auckland declining his application for leave to bring a derivative action under s 165 of the Companies Act 1993.[1]

   [1]Nobilo v Nobilo [2014] NZHC 401.

2. Mr Nobilo’s notice of appeal to this Court was served on the respondent, Mrs Nobilo, in time, but unfortunately, while dispatched in time, did not reach this Court until one working day after the prescribed time.

3. Mrs Nobilo accepts that this occurred through no fault of Mr Nobilo or his lawyers and that she has not been prejudiced by the one day delay in this Court’s receipt of the notice.  She opposes the application, however, on the grounds that the appeal lacks merit and does not raise any issue of public importance.

4. The parties have agreed that the application should be determined by the Court on the papers.[2]  Both parties have filed memoranda.

   [2]Nobilo v Nobilo CA198/2014, 23 May 2014 (Minute of Ellen France J).

5. The application is made under r 29A of the Court of Appeal (Civil) Rules 2005.  It is well-established that the Court will not exercise the wide and flexible discretionary power under this rule lightly and that the overarching consideration is the interests of justice.[3]  Relevant considerations include the length of the delay and the reasons for it, the parties’ conduct, the extent of prejudice caused by the delay, the prospective merits of the appeal and whether the appeal raises any issue of public importance.  Significantly, the Court distinguishes between delay caused by mistake or oversight and delay explained by a change of mind.[4]

   [3]Robertson v Gilbert [2010] NZCA 429 at [24] and My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].

   [4]McGechan on Procedure (online looseleaf ed, Brookers) at [CR29A.02(3)(b)].

6. Here, where the delay is one working day and was not caused by Mr Nobilo or his lawyers and there is no prejudice to Mrs Nobilo, the interests of justice are plainly and overwhelmingly in favour of granting the extension of time.  Indeed in these circumstances it is surprising that Mrs Nobilo has opposed the application.

7. While Mr Nobilo accepts that his appeal does not involve any issue of public importance and while the merits of his appeal may not be particularly strong, he nonetheless had a right of appeal to this Court against the High Court decision which he was entitled to exercise.  He should not be precluded from exercising that right merely because, through no fault of his own, the notice of appeal was received by the Court one working day late.  In this situation a detailed consideration of the merits of the appeal is not warranted.

8. In order to ensure that the merits of the appeal are addressed expeditiously, Mr Nobilo is directed, as a condition of the grant of the application, to file and serve the case on appeal and seek a fixture for the hearing of the appeal by 27 June 2014.

9. As Mrs Nobilo’s grounds for opposing the application were weak and it should have been clear to her that an extension would be granted,[5] she must pay Mr Nobilo’s costs on this application calculated as for a standard application on a band A basis and usual disbursements.

   [5]My Noodle Ltd v Queenstown-Lakes District Council, above n 3, at [29] and PAE (New Zealand) Ltd v Brosnahan [2009] NZCA 105, (2009) 19 PRNZ 496 at [12].

Solicitors:
Langdon & Co, Auckland for Applicant
Donnell & Associates, Auckland for Respondent