PETER GLEN GILL AND ANTHONY JAMES LETHLEAN - [2025] NZCA 161

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA129/2025
[2025] NZCA 161

BETWEEN	PETER GLEN GILL Applicant
AND	ANTHONY JAMES LETHLEAN Respondent

Hearing:	5 May 2025
Court:	Thomas and Woolford JJ
Counsel:	Applicant in person H Cassin for Respondent C R Vinnell for Official Assignee as an interested party
Judgment:	9 May 2025 at 3:30 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted. Mr Gill is to file an appeal against the order for adjudication as a bankrupt within 20 working days of the date of this judgment.
BWe direct that a copy of this judgment be sent to the High Court at Christchurch prior to the hearing of Mr Gill’s challenge to the decision of the Official Assignee to admit the claim by Mr Morland and Mr Gill’s application for annulment of his bankruptcy.
CIn light of Mr Gill’s disability, we direct the appointment of amicus to assist Mr Gill in drafting the notice of appeal and to appear on his behalf at the hearing of the appeal. We also waive security for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

Peter Gill was adjudicated bankrupt on 28 October 2021. If he wished to appeal against his adjudication he had to do so within 20 working days.[1] That period of time can however be extended by the Court.[2] Mr Gill now applies for an extension of time to file an appeal. He filed the application on 5 March 2025, more than three years and four months after his bankruptcy.

Bankruptcy

[1]Court of Appeal (Civil) Rules 2005, r 29(1)(a).

[2]Rule 29A.

Mr Gill was bankrupted over a debt of approximately $5000 being a costs award to the judgment creditor, Anthony Lethlean, following a dispute over Mr Gill’s eligibility for income protection insurance during the COVID-19 pandemic. When the judgment creditor’s application for an order of adjudication was first called in the High Court in Christchurch on 16 September 2021, Associate Judge Lester recorded:
Mr Gill is to start an automatic payment of $100 per week, the first payment of $400 per month on the 20th of September. [The application for an order of adjudication] is adjourned to the 28th of October to monitor payments, so that will mean two payments will have been made. If payments are not honoured, further time is unlikely.
The Judge made it plain to Mr Gill that he had to attend the adjourned hearing on 28 October. The transcript of the initial hearing reads:
Mr Gill:          And, and if I make both payments, do I need to attend?
Judge:            Yes.
Mr Gill:          I do. Yes.
Judge: Yes. If the first payment is not made then the creditor can ask for this to come back earlier.
Mr Gill:          Yes.
Judge: Ah, if the payments are made then we need to talk about what’s going to happen then. Ah, so that’s why you need to be here.
Mr Gill:          Yea.

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.

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Details

Case: [2025] NZCA 161
Decision Date: 9 May 2025 at 3:30 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Peter Glen Gill applied for an extension of time to appeal against his adjudication as a bankrupt. The Court granted the application, allowing Mr Gill to file an appeal within 20 working days of the judgment. The appeal concerns the adjudication order made on 28 October 2021, which was based on Mr Gill's failure to appear in court as directed by the judge, and his alleged non-compliance with a payment plan. Mr Gill asserts that he did not miss any payments and that his dyslexia contributed to the misunderstanding of the payment schedule, leading to his bankruptcy.

The court considered several factors in granting the extension, including the substantial delay, the reasons for the delay, the conduct of the parties, potential prejudice to others, and the significance of the appeal's issues. The court recognised that Mr Gill's disability made the court process confusing and overwhelming for him. Despite the significant delay, the court found that the interests of justice required granting the extension, particularly given the limited significance of the appeal's issues to the broader public but their profound importance to Mr Gill. The court also noted that Mr Gill had made two payments as directed by the judge, which were not known to the court at the time of the adjudication.

The Court directed that a copy of the judgment be sent to the High Court at Christchurch, where Mr Gill's challenges to the Official Assignee's decisions regarding his bankruptcy are pending. The Court also appointed an amicus to assist Mr Gill in drafting the notice of appeal and to represent him at the appeal hearing. The Court waived the security for costs in light of Mr Gill's disability.

Orders