Prescott v Thompson - [2021] NZCA 590

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA304/2020
CA478/2020
[2021] NZCA 590

BETWEEN	PETER RICHARD PRESCOTT Applicant
AND	VIOLET GEORGINA THOMPSON First Respondent DISTRICT COURT AT AUCKLAND Second Respondent

Court:	Clifford and Gilbert JJ
Counsel:	Applicant in person R E Harrison QC for First Respondent No appearance for Second Respondent
Judgment: (On the papers)	11 November 2021 at 9.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to file the case on appeal and apply for a hearing date in CA304/2020 is declined.
BThe application for an extension of time to file the case on appeal and apply for a hearing date in CA478/2020 is declined.
CBoth appeals are deemed to have been abandoned.
DThe applicant must pay costs to the first respondent for each of these applications on a band A basis and any usual disbursements.

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REASONS OF THE COURT

(Given by Gilbert J)

After their de facto relationship ended in September 2016, Mr Prescott brought proceedings in the District Court at Auckland alleging that Ms Thompson made a contractually binding promise that a trust with which she was associated would, at some time in the future, sell him a residential property in Huntly at its purchase price in 2015. Mr Prescott sought an order that Ms Thompson provide a “buy now” price for the property. He also alleged that Ms Thompson agreed to allow him to do any repair or maintenance work on the property. Mr Prescott claimed that in breach of this agreement, Ms Thompson had work carried out on the property by someone else. He sought an order that the value of this work be deducted from the purchase price.
This proceeding was heard before Judge Cunningham on 7 November 2018. Mr Prescott attended the hearing, gave evidence and presented submissions. In a reserved judgment delivered on 18 March 2019, Judge Cunningham dismissed Mr Prescott’s claim finding that the parties did not intend to create legal relations and any contract would fail in any event for uncertainty of terms.[1] The Judge also noted that Ms Thompson did not own the property.[2]
[1]Prescott v Thompson [2019] NZDC 4646 [Substantive decision] at [21] and [28].
[2]At [29].
In a subsequent judgment delivered on 4 June 2019, Judge Cunningham awarded costs to Ms Thompson in the sum of $10,769 plus disbursements.[3]
[3]Prescott v Thompson [2019] NZDC 4646 [Costs decision].
Mr Prescott appealed to the High Court, but his appeal was deemed abandoned after he failed to pay security for costs.
In an attempt to overcome this problem, Mr Prescott applied for judicial review of various interlocutory decisions made in the District Court declining his applications for adjournment of the hearing. These adjournment applications were made in August, September, October and November 2018. The first three applications were advanced on the basis that he had insufficient time to prepare his case. The last of the applications was made on 5 November 2018, two days before the…

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 Prescott v Thompson

Details

AGLC: Prescott v Thompson [2021] NZCA 590
Case: [2021] NZCA 590
Decision Date: 11 November 2021 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Peter Richard Prescott to extend the time for filing the case on appeal and applying for a hearing date in two separate appeals, CA304/2020 and CA478/2020. Prescott's appeals were against decisions of the High Court at Auckland, which dismissed his appeals against judgments of the District Court at Auckland. The appeals were against findings that Prescott was medically and physically fit to attend Court and against the award of costs to Violet Georgina Thompson. Thompson opposed the application for an extension of time, arguing that the appeals had no realistic prospect of success and that finality should be achieved.

The court had to determine whether to grant Prescott an extension of time to file the case on appeal and apply for a hearing date in the two appeals. In exercising its discretion under r 43(2) of the Court of Appeal (Civil) Rules 2005, the court considered the reasons for the delay in prosecuting the appeals and whether the appeals were genuinely arguable. The court accepted that Prescott was a lay litigant and may have had difficulty obtaining legal representation, but this did not adequately explain the delays in prosecuting the appeals. More significantly, the court considered that the appeals had no realistic prospect of success and a reasonable, solvent appellant would not pursue them. The court also considered that Thompson was entitled to finality and should not be vexed by Prescott's further pursuit of his underlying claim, which had failed on the facts.

The court decided to decline the application for an extension of time in both appeals, deeming both appeals to have been abandoned. The court ordered that Prescott pay costs to Thompson for each of the applications on a band A basis and any usual disbursements. The court's decision brought the proceedings to an end and achieved finality for Thompson.

In summary, the court declined Prescott's application for an extension of time to file the case on appeal and apply for a hearing date in the two appeals, deeming both appeals to have been abandoned. The court ordered Prescott to pay costs to Thompson for each of the applications on a band A basis and any usual disbursements. The court's decision brought the proceedings to an end and achieved finality for Thompson.

Orders