Rabson v Shepherd
[2016] NZCA 446
•19 September 2016 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA51/2016 [2016] NZCA 446 |
| BETWEEN | MALCOLM EDWARD RABSON AND RICHARD JOHN CRESER AS TRUSTEES OF THE MALCOLM RABSON FAMILY TRUST |
| AND | IAIN BRUCE SHEPHARD AND CHRISTINE MARGARET DUNPHY |
| Hearing: | 12 September 2016 |
Court: | Wild, French and Brown JJ |
Counsel: | Appellant M E Rabson in person |
Judgment: | 19 September 2016 at 12.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 to apply for a hearing date and file the case on appeal is declined.
BMr Rabson must pay the respondents costs as for a standard application for leave to appeal on a band A basis together with usual disbursements.
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REASONS OF THE COURT
(Given by Brown J)
Mr Rabson was adjudicated bankrupt in March 2013. All claims and causes of action in Mr Rabson’s bankrupt estate were assigned to the respondents, the liquidators of two companies associated with Mr Rabson. On 9 December 2015 the respondents were successful in a High Court proceeding against Mr Rabson and Mr Creser in their capacities as trustees of the Malcolm Rabson Family Trust (the Trust) for the sum of $782,531. Collins J found the Trust owed Mr Rabson that sum, which the respondents were entitled to claim from the trustees on behalf of Mr Rabson’s bankrupt estate.[1]
[1]Shephard v Rabson [2015] NZHC 3137.
Mr Rabson filed an appeal on 28 January 2016 against that decision, in his capacity as trustee. Security for costs was set in the sum of $6,600. An application to dispense with security for costs made by Mr Creser, who is named as an appellant in the appeal, was declined. No application to dispense with security for costs was made by Mr Rabson, and security for costs has not been paid.
Rule 43 of the Court of Appeal (Civil) Rules 2005 relevantly provides:
43 Appeal abandoned if not pursued
(1)An appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within 3 months after the appeal is brought.
(2)The Court, on application, may—
(a)grant an extension of the period referred to in subclause (1); and
(b)grant 1 or more further extensions of any extended period.
…
On 22 April 2016 Mr Rabson submitted a legal aid application to the Ministry of Justice. That same day Mr Rabson filed the application now before us seeking an order under r 43(2) of the Court of Appeal (Civil) Rules 2005 for an extension of the three month period in r 43(1). The extension sought was “to a date being 21 days after the Ministry of Justice determines the appellant’s legal aid application in respect of this appeal.”
Mr Rabson’s application for legal aid was refused on 18 May 2016. On his application for reconsideration, the refusal was confirmed on 15 June 2016. An appeal to the Legal Aid Tribunal was declined on 17 August 2016. At the hearing of this application Mr Rabson advised that he had that same day filed a proceeding in the High Court at Wellington seeking judicial review of the Tribunal’s decision.
Mr Rabson argues that it is contrary to the interests of justice not to grant an extension of time while the issue of legal aid is still alive. The respondents oppose the application for an extension of time on the grounds that Mr Rabson did not properly apply for legal aid, in that he did not do so prior to filing his notice of appeal, and his appeal is vexatious and without merit.
In our view the application for an extension of time should be declined for three reasons. First, no application for legal aid had been lodged when the appeal was brought on 28 January 2016 as envisaged by r 36(1) of the Court of Appeal (Civil) Rules. The legal aid application was not lodged until shortly prior to the expiry of the three month period in r 43(1).
Secondly, his legal aid application was unsuccessful at the initial consideration, under reconsideration and on further review by the Tribunal. The only right of appeal from the Tribunal’s decision is on a question of law. No such appeal has been brought. We were not provided with any details of the basis on which judicial review is sought. However in our view the fact of such a proceeding does not justify an extension of time given the circumstances in our first and third reasons.
Thirdly, r 43(1) requires that an appellant is to apply for a hearing date within three months after the appeal is brought. However, r 37(2) provides that payment of security for costs is a prerequisite to the application for a hearing date. There would be no purpose in granting an extension of time for compliance with r 43 when Mr Rabson evinces no intention of paying security for costs.
Accordingly the application for an extension of time under r 43(2) to apply for a hearing date and file the case on appeal is declined. Mr Rabson is ordered to pay the respondents costs as for a standard application for leave to appeal on a band A basis together with usual disbursements.
Solicitors:
McMahon Butterworth Thompson, Auckland for Respondents