Pickard v Ambrose - [2011] NZCA 77

IN THE COURT OF APPEAL OF NEW ZEALAND

CA724/2010
[2011] NZCA 77

BETWEEN AMANDA PICKARD
First Applicant

AND TROY GEORGE TAYLOR
Second Applicant

AND CHAS AMBROSE
First Respondent

AND RINNAI NEW ZEALAND LIMITED
Second Respondent

Hearing: 15 March 2011

Court: Chambers, Randerson and Wild JJ

Counsel: N J Russell and J F M Dunne for Applicants
I G Hunt for First Respondent
P J L Hunt for Second Respondent

Judgment: 18 March 2011 at 11 am

JUDGMENT OF THE COURT

A The application to extend time for appealing is dismissed.

B The applicants must pay each of the respondents costs as if this were a standard application for leave to appeal on a band A basis and usual disbursements. The liability of the applicants is joint and several.

REASONS OF THE COURT

(Given by Chambers J)

We dismiss the application to extend time for appealing for the following reasons, taken together.[1]
[1]The principal factors normally considered when assessing “the overall interests of justice” are set out in My Noodle Limited v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518.
First, there was excessive delay on the applicants’ part. The decision sought to be appealed against was delivered on 21 December 2009.[2] An application to extend time for appealing was not filed until 15 September 2010, almost nine months later. Even then, the application, running to some 800 pages, was hopelessly non‑compliant with the Court of Appeal (Civil) Rules 2005. It was not until Mr Russell became involved for the applicants that a proper application for an extension of time for appealing was filed – on 11 February this year, well over a year after delivery of the decision sought to be challenged. The applicants were well aware of their right of appeal. They have not satisfactorily explained their delay in this regard.
[2] Pickard v Ambrose HC Wellington CIV-2003-091-143, 21 December 2009.
Secondly, the applicants were responsible for numerous delays in the progress of this proceeding in the High Court. The heater at the heart of this litigation was installed in 1998. The applicants did not file proceedings until April 2003. The hearing in the High Court did not take place until October 2009. A significant cause of that lengthy delay was the applicants’ persistent failure to meet timetabling directions. Further, it is clear the applicants acted unreasonably in rejecting what this Court, on an earlier appeal, described as a “substantial September 2008 settlement offer”, contrary to the advice of their counsel and the opinion of the assessor consulted by the Legal Services Agency.[3]
[3] Ambrose v Pickard [2009] NZCA 502 at [41].
Thirdly, there would be considerable prejudice to the respondents if we were to allow this late appeal to go ahead. This litigation has now been on foot since 2003. The litigation has lacked any sort of proportionality, largely because, as this Court said, Ms Pickard had been and is “largely free of the usual disincentives which moderate the conduct of litigation”.[4] Mr Russell…

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 Pickard v Ambrose

Details

AGLC: Pickard v Ambrose [2011] NZCA 77
Case: [2011] NZCA 77
Decision Date: 18 March 2011

CaseChat Overview and Summary

Pickard v Ambrose involved a dispute between Amanda Pickard and Troy George Taylor (the applicants) against Chas Ambrose and Rinnai New Zealand Limited (the respondents). The applicants sought to appeal against a decision made in the High Court on 21 December 2009. The primary issue before the Court of Appeal was whether the applicants should be granted an extension of time to appeal the decision. The applicants had filed an application to extend time for appealing on 15 September 2010, which was almost nine months after the decision was delivered. However, the application was non-compliant with the Court of Appeal (Civil) Rules 2005. The applicants did not provide satisfactory explanations for their delay in filing the application.

The Court of Appeal dismissed the application to extend time for appealing. The court held that there was excessive delay on the part of the applicants. The applicants had been aware of their right of appeal but had not satisfactorily explained their delay in filing the application. The applicants were also responsible for numerous delays in the progress of the proceeding in the High Court. The court found that there would be considerable prejudice to the respondents if the late appeal were allowed to proceed. The court also held that the proposed appeal had little merit, as the principal issue in the High Court was whether carbon monoxide had escaped from the heater, which the applicants had not proved. The court found that the proposed appeal did not raise any issue of public importance. The applicants were ordered to pay the respondents' costs as if this were a standard application for leave to appeal on a band A basis and usual disbursements, with the applicants' liability being joint and several.

Orders