Philpott v Noble Investments Limited

[2013] NZCA 379

IN THE COURT OF APPEAL OF NEW ZEALAND

CA274/2013
[2013] NZCA 379

BETWEEN

SHAYNE PHILPOTT
First Appellant

NEW ZEALAND TRUSTEE SERVICES LIMITED
Second Appellant

COLIN PETER STOKES
Third Appellant

FAY EUNICE RICHARDSON
Fourth Appellant

BURNSIDE TRUSTEES LIMITED
Fifth Appellant

GREGORY ROBERT SMITH
Sixth Appellant

AND

NOBLE INVESTMENTS LIMITED
Respondent

Court:

Ellen France, Harrison and White JJ

Counsel:

W J Palmer for Appellants
S M Dwight for Respondent

Judgment:

(On the papers)

19 August 2013 at 11.30 am

JUDGMENT OF THE COURT

The application for an extension of time to apply for a hearing date and file the case on appeal is granted.  The case on appeal is to be filed by 4 October 2013.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

1. This is an application under r 43(2)(a) of the Court of Appeal (Civil) Rules 2005 for an extension of time to apply for a hearing date and file a case on appeal.  The application is opposed.

2. The application concerns the appellants’ appeal against the judgment of Associate Judge Osborne of 5 March 2013.[1]  The appellants on appeal wish to challenge the High Court’s dismissal of various applications they made to amend aspects of the Associate Judge’s orders made in an earlier judgment of 28 June 2012 (the first decision).[2]  Both judgments concerned caveats lodged by the appellants to protect asserted interests over various lots in a subdivision being undertaken by the respondent, Noble Investments Ltd.

   [1]Philpott v Noble Investments Ltd [2013] NZHC 400.

   [2]Philpott v Noble Investments Ltd [2012] NZHC 1431.

3. The position is that the appellants did not appeal against Associate Judge Osborne’s first decision in a timely way.  They have accordingly filed an application for an extension of time to file an appeal against that decision.  That application is opposed and is to be heard on 16 September 2013.[3]

   [3]That application has been assigned the file number CA200/2013.

4. The appellants’ appeal against Associate Judge Osborne’s second decision of 5 March 2013 was filed in time.  However, the appellants say that the most efficient course is for the application for an extension of time for the filing of the appeal against the first decision to be dealt with first.  The appellants emphasised that they would have to file a case for that hearing in any event.

5. The respondent opposes the application on the basis this will delay the appeal process with resultant prejudice to the respondent.  Counsel says there will be direct financial consequences for the respondent in terms of pre-sale contracts, obtaining ongoing development funding, and also in terms of interest costs on development funding the respondent is presently carrying.

6. There is some force in the respondent’s concern about further delay.  The potential for further delays has come about at least in part because of the appellants’ delay in appealing against the first decision in a timely way.  However, it seems likely that if the application for an extension of time in relation to the first decision is granted then the two appeals would be heard together or at least sequentially.  That would seem likely given the overlap between the two High Court decisions.  In these particular circumstances, the interests of justice are met by granting an extension of time for the filing of the case on appeal to allow for a hearing and decision on the application for an extension of time in relation to the first decision.  The respondent, in the context of the hearing on that matter, can ask that any extension of time is subject to conditions to ensure a speedy resolution of the matter.

7. For these reasons, the application for an extension of time to apply for a hearing date and file the case on appeal is granted.  The time is extended to 4 October 2013.

Solicitors:

Buddle Findlay, Christchurch for Appellants
Cavell Leitch, Christchurch for Respondent