Page v Official Assignee - [2017] NZCA 134

IN THE COURT OF APPEAL OF NEW ZEALAND

CA623/2016
[2017] NZCA 134

BETWEEN	ADRIAN NEIL PAGE Applicant
AND	OFFICIAL ASSIGNEE First Respondent
WHANGANUI DISTRICT COUNCIL Second Respondent

Hearing	10 April 2017
Court:	Harrison, French and Brown JJ
Counsel:	Applicant in person No appearance for First Respondent P Drake and C B Wilkinson-Smith for Second Respondent
Judgment:	26 April 2017 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is declined.
BThe applicant must pay the second respondent costs as for a standard application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by French J)

Mr Page wishes to appeal a decision of Associate Judge Smith delivered in the High Court on 24 August 2016.[1] The time for filing an appeal expired on 21 September 2016.[2] Mr Page did not file his appeal until 8 December 2016. Mr Page now seeks an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005.
[1]Page v Official Assignee [2016] NZHC 1988.
[2]Court of Appeal (Civil) Rules 2005, r 29.
The application is opposed by the second respondent.
In determining whether to grant an extension, the ultimate question for the Court is to determine where the interests of justice lie. Four factors are particularly relevant to that inquiry, namely:[3]
(a)the length of the delay and the reasons for it;
(b)the conduct of the parties;
(c)the extent of prejudice caused by the delay; and
(d)the merits of the proposed appeal.
[3]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19]; and Wardell v ASB Bank Ltd [2015] NZCA 334 at [12].
As the second respondent (the Council) acknowledges, the delay of 52 working days in this case has not of itself caused any specific prejudice. However, it is a significant period of time and the explanation for it is inadequate. Mr Page says he did not receive a hard copy of the High Court decision until 21 October 2016, the November earthquake impeded access to his regular typist (he does not himself own a computer or know how to use one), the earthquake impeded his ability to come to the Court and he works full time. None of those excuses is compelling. Mr Page did receive an electronic copy of the High Court decision in August and he could have filed a handwritten notice of appeal.
We are also satisfied the proposed appeal lacks merit.
In the decision at issue, the Associate Judge declined Mr Page’s application for annulment of an order adjudicating him bankrupt in 2011.[4] It was the fourth such application made by Mr Page and, as the Associate Judge noted, the Court will not entertain serial applications for annulment in the absence of new evidence sufficient to support a finding that the adjudication order should not have been issued.[5] The Judge found Mr Page had not raised any new issues, nor had he pointed to…

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 Page v Official Assignee

Details

AGLC: Page v Official Assignee [2017] NZCA 134
Case: [2017] NZCA 134
Decision Date: 26 April 2017 at 3.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Adrian Neil Page for an extension of time to appeal a decision made by Associate Judge Smith in the High Court. The Associate Judge had declined Mr Page’s application for annulment of an order adjudicating him bankrupt in 2011. Mr Page sought to appeal this decision, but his notice of appeal was filed 52 working days beyond the allowed time. The Official Assignee opposed the application, as did the Wanganui District Council. The primary issue before the Court was whether Mr Page's application for an extension of time should be granted, considering factors such as the length of the delay, the reasons for it, the conduct of the parties, the extent of prejudice caused by the delay, and the merits of the proposed appeal.

The Court found that the delay was significant and largely unexplained, and that the proposed appeal was without merit. Mr Page had made multiple unsuccessful applications to challenge the bankruptcy adjudication, and his reasons for the delay in filing the notice of appeal were inadequate. The Court of Appeal held that the proposed appeal was hopeless, and that it was not in the interests of justice to grant an extension of time to pursue such an appeal. The Court also concluded that the delay and the hopeless nature of the appeal were fatal to the application, and that the application should be declined.

The Court of Appeal declined Mr Page’s application for an extension of time to appeal and ordered him to pay the Wanganui District Council costs as for a standard application on a band A basis and usual disbursements. The Court found that the delay was significant and largely unexplained, and that the proposed appeal was without merit. The Court held that the proposed appeal was hopeless, and that it was not in the interests of justice to grant an extension of time to pursue such an appeal. The Court also concluded that the delay and the hopeless nature of the appeal were fatal to the application, and that the application should be declined.

Orders