Prescott v Thompson

[2020] NZCA 521

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA304/2020
 [2020] NZCA 521

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

Counsel:	Appellant in person R E Harrison QC for First Respondent
Judgment: (On the papers)	23 October 2020 at 11.00 am

JUDGMENT OF MILLER J
(Review of Registrar’s Decision)

The application for review of the Deputy Registrar’s decision is declined.

____________________________________________________________________

REASONS

1. Mr Prescott applies for a review of the Deputy Registrar’s “decision” to abandon his appeal. 

Background

1. Mr Prescott filed a claim in the District Court that his former partner, Ms Thompson, had made a contractually binding promise that she would sell him a property at a certain value.  Before this matter could be heard in the District Court, Mr Prescott made several unsuccessful attempts to adjourn the fixture.  The hearing proceeded and a judgment subsequently issued in favour of Ms Thompson.[1]  Mr Prescott filed judicial review proceedings, alleging that the District Court’s decision to not adjourn the hearing for his claim was unreasonable.  On 15 May 2020, Palmer J dismissed the application for judicial review.[2]

   [1]Prescott v Thompson [2019] NZDC 4646.

   [2]Prescott v Thompson [2020] NZHC 1004.

2. Mr Prescott filed an appeal against this decision on 8 June 2020.  The requirements of r 43(1) of the Court of Appeal (Civil) Rules 2005 of applying for the allocation of a hearing date and filing the case on appeal were not complied with in the prescribed three-month period.  Accordingly, the appeal was deemed abandoned on 8 September 2020.  The “Notice of Result” communicating this to the parties was signed by the Deputy Registrar. 

3. Mr Prescott seeks a review of the Deputy Registrar’s decision.[3]  He submits that it was due to extenuating circumstances that he was unable to comply with the requirements imposed by r 43.

Analysis

[3]Court of Appeal (Civil) Rules 2005, r 5A(3).

1. The application for review cannot succeed.  There is no decision of the Deputy Registrar to review.  Mr Prescott’s appeal was abandoned by operation of law due to his failure to comply with the requirements of r 43.  If Mr Prescott wishes to remedy this situation, he must make an application for an extension of time to comply with r 43 by 8 December 2020.[4]  I do not encourage him to apply;  he failed on the facts, and in my opinion his appeal has no merit.  However, it is his right to do so.

Result

[4]Rule 43(3).

1. The application for review of the Deputy Registrar’s decision is declined.

Solicitors:

N/A