Prescott v Thompson
[2021] NZCA 590
•11 November 2021 at 9.30 am
| 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 |
| AND | VIOLET GEORGINA THOMPSON |
| Court: | Clifford and Gilbert JJ |
Counsel: | Applicant in person |
Judgment: | 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 substantive hearing, by way of memorandum headed “memorandum of impossibility”. Mr Prescott claimed that he was suffering from severe chest pains such that he could not “sit upright without enduring excruciating pain”. No medical evidence was provided. The application for an adjournment was not renewed at the time of the District Court hearing two days later when Mr Prescott appeared, gave evidence and presented lengthy written submissions (197 pages).
Mr Prescott’s application for judicial review was heard by Palmer J in the High Court at Auckland on 13 March 2020. The Judge dismissed the application for judicial review in a reserved judgment delivered on 15 May 2020.[4] The essence of the Judge’s reasoning is captured in the following three paragraphs of his judgment:
[23] But Mr Prescott was not denied a reasonable opportunity to present his case. His first three applications for adjournment clearly deserved to fail. He had more than enough time to prepare his case, as Judge Harrison said in relation to the first. His fourth attempt, when buttressed by his claim of illness, was the best chance. But Mr Prescott did not apply for leave to bring that application, as he knew from the failure of his previous application he was required to do. He did not provide any evidence in support of his claims about his medical condition. The dismissal of his application was entirely reasonable.
[24] Furthermore, the medical documentation Mr Prescott now provides is inconsistent with what he claimed at the time he sought the adjournment. He did not mention his medical condition at all in his memorandum of 23 October. His memorandum of 29 October said he was “in severe and constant physical pain” on 22 October 2018. The medical notes say he reported a dull ache in his chest three days before 24 October and the pain was 5/10. There may have been pain from singles on 27 October 2018, on his second admission. But his acknowledgement that he went dancing that evening does not suggest it was incapacitating.
[25] Neither is there any indication from the evidence about the District Court hearing on 7 November 2018 that Mr Prescott was medically unfit or prejudiced in presenting his case. He did present it. There are no obvious problems in his presentation which could be attributed to medical unfitness. Neither does the evidence of others present suggest there were indications of medical prejudice. And, crucially, Mr Prescott did not apply for an adjournment at the hearing. In the absence of any evidence of any obvious problem in Mr Prescott’s ability to present his case, and no application by him for an adjournment, no fault can be found in Judge Cunningham simply hearing the case she was scheduled to hear.
[4]Prescott v Thompson (No 2) [2020] NZHC 1004.
Mr Prescott’s appeal in CA304/2020 is against this judgment. It was filed on 8 June 2020 and states that the appeal is against the Judge’s finding that Mr Prescott was “medically and physically fit to attend Court” (meaning the District Court).
On 30 July 2020, Palmer J awarded costs to Ms Thompson calculated on a category 2, band B basis uplifted by 25 per cent.[5] Mr Prescott’s appeal in CA478/2020 is against this judgment. It was filed on 24 August 2020.
[5]Prescott v Thompson (No 3) [2020] NZHC 1858.
Despite the passage of more than a year since the appeals were filed, Mr Prescott has not filed the case on appeal or applied for a hearing date for either of these appeals. The present applications are for a further extension of time to do this. Ms Thompson opposes any further extension of time being granted.
Various submissions have been filed by Mr Prescott in support of the present applications. Submissions in respect of the application for an extension of time in CA304/2020 were filed by Mr Prescott on 25 January, 22 March and 12 May 2021. The last of these, filed on 12 May 2021, was in respect of both appeals. On 27 September 2021, Mr Prescott advised that he relies on these most recent submissions in support of the current applications. We have, however, read them all and the submissions filed on behalf of Ms Thompson in response.
In exercising the discretion whether to grant an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005, the Court will generally consider the reasons for the delay in prosecuting the appeal and whether the appeal is genuinely arguable. Some latitude can be expected to be afforded to lay litigants if they are unfamiliar with court procedures.
Mr Prescott is a lay litigant, but he is an experienced litigant, well‑versed in court procedures. We accept that Mr Prescott may have had some difficulty obtaining legal representation, but this does not adequately explain the delays that have occurred in prosecuting these appeals by filing the case on appeal and seeking a hearing date. More significantly, we consider the appeals have no realistic prospect of success and a reasonable, solvent appellant would not pursue them. Ms Thompson is entitled to finality and should not be vexed by Mr Prescott’s further pursuit of his underlying claim which was initiated over four years ago and failed on the facts. The interests of justice require that these proceedings be brought to an end.
For these reasons, we are satisfied that it is in the interests of justice that the applications for an extension of time in both appeals be declined.
Result
The application for an extension of time to file the case on appeal and apply for a hearing date in CA304/2020 is declined.
The application for an extension of time to file the case on appeal and apply for a hearing date in CA478/2020 is declined.
Both appeals are deemed to have been abandoned.
The 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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