Rea v Waller - [2006] NZCA 3

IN THE COURT OF APPEAL OF NEW ZEALAND
CA232/05
BETWEENVIOLET ELLEN REA

Applicant

ANDJOHN ANTHONY WALLER AND RICHARD DALE AGNEW

Respondents

Hearing:13 February 2006

Court:Anderson P, Hammond and Ellen France JJ
Counsel:C A McLorinan for Applicant

M J Tingey for Respondents

Judgment:22 February 2006

JUDGMENT OF THE COURT

A        The application for special leave is dismissed.
B        Costs to the respondents of $1,500 along with usual disbursements.
____________________________________________________________________
REASONS
(Given by Ellen France J)
[1]       This is an application under r 29(4) of the Court of Appeal (Civil) Rules 2005 for special leave to appeal out of time against a judgment of Associate Judge Lang (as he then was) granting summary judgment to the respondents.
Background
[2]       Mr Waller and Mr Agnew, the respondents, were appointed under the Corporations (Investigation and Management) Order (No.2) 2003 as statutory managers of several entities. The entities included the International Investment Unit Trust (ITUT), the Timberland Trust, and Donald Morris Rea.
[3]       Donald Rea is the son of the applicant, Mrs Violet Rea. Mrs Rea is settlor and a trustee of the trust known as the VET Trust.
[4]       In a judgment dated 10 August 2004, Associate Judge Lang granted an application for summary judgment by the statutory managers against Mrs Rea in relation to funds received by the VET Trust. Orders were made under s 54 of the Corporations (Investigation and Management) Act 1989 that funds held by Mrs Rea that came from the VET Trust’s bank account were to be transferred to the statutory managers. To the extent those funds were less than $1,224,753.94, Mrs Rea was ordered to pay the value of the shortfall to the statutory managers.
Principles relevant to this application
[5]       An application under r 29(4) requires a determination of the overall interests of justice (Havanaco Ltd v Stewart (2005) 17 PRNZ 622). This Court in Reid v Tararua District Council CA72/05 20 June 2005 identified the following factors as relevant in that determination:
a)The delay in bringing the appeal;
b)The reason for that delay;
c)Whether subsequent events justify the grant of leave;
d)The merits of the proposed appeal; and
e)Any prejudice to the respondents.

[6]       The application for leave is opposed on the grounds these factors all count against the applicant.
Delay in bringing appeal
[7]       The application for special leave was filed on 21 October 2005, over a year after the appeal ought to have been brought.
Reason for delay
[8]       The applicant filed an affidavit dated 20 October 2005 in support of her application for leave. Mrs Rea gives the following reasons for the delay in bringing the appeal:
8.1She initially relied on Donald Rea, her son, for advice and has been “unduly influenced” by her son.
8.2Mrs Rea sought legal advice in March 2005 by which time the appeal was already out of time and her efforts were focused on other litigation including a challenge to a bankruptcy petition and an unsuccessful attempt to have the summary judgment set aside. The latter judgment…

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 Rea v Waller

Details

AGLC: Rea v Waller [2006] NZCA 3
Case: [2006] NZCA 3
Decision Date: 22 February 2006

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Violet Ellen Rea for special leave to appeal a judgment in favour of John Anthony Waller and Richard Dale Agnew. The judgment was granted by Associate Judge Lang under s 54 of the Corporations (Investigation and Management) Act 1989 and ordered that Mrs Rea transfer funds from the VET Trust to the statutory managers. The appeal was out of time and the applicant sought leave under r 29(4) of the Court of Appeal (Civil) Rules 2005. The Court considered the overall interests of justice and several factors, including the delay in bringing the appeal, the reason for that delay, whether subsequent events justified the grant of leave, the merits of the proposed appeal, and any prejudice to the respondents. The Court found that the lengthy delay was not excusable, the proposed appeal had no merit, and any further delay would affect third parties. The application for special leave was dismissed and costs of $1,500, along with usual disbursements, were awarded to the respondents.

The appeal involved the question of whether the applicant should be granted special leave to appeal a judgment that had been entered out of time. The applicant argued that the delay in bringing the appeal was excusable due to her reliance on her son for advice, the need for legal advice, and her status as a legal aid recipient. The Court found that the applicant had not adequately accounted for the delay and that there were no subsequent events that warranted the grant of leave. The Court also found that the proposed appeal had no merit as the applicant did not challenge the judge's findings that the funds were improperly disbursed and that she was required to repay them. The Court concluded that the interests of justice did not favour granting leave to appeal and dismissed the application.

Orders