Reid v Cottle - [2014] NZCA 154

IN THE COURT OF APPEAL OF NEW ZEALAND

CA363/2011
[2014] NZCA 154

BETWEEN

JAMES ROBERT REID
Applicant

AND

SUZANNE LYNNE COTTLE
First Respondent

COOPER RAPLEY LAWYERS
Second Respondent

Hearing:	2 April 2014
Court:	O’Regan P, Wild and White JJ
Counsel:	Applicant in person J Reardon for Respondent
Judgment:	17 April 2014 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for the allocation of a hearing date and to file the case on appeal is dismissed.
BThe applicant must pay the respondents costs for a standard application on a band A basis plus usual disbursements. The security for costs paid by the applicant may be used to meet this award, with any excess being refunded to the applicant.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

This is an application for an extension of time to apply for the allocation of a hearing date and to file the case on appeal. The application is made under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules). The application is opposed.

Appeal

The appeal to which the application relates is an appeal against a decision of Williams J.[1] In that decision, Williams J struck out the claim made by Mr Reid and Mrs Christine Barber as trustees of the Marangairoa Trust against Ms Cottle and the law firm that acted for her in the transaction that is subject to the present proceedings, Cooper Rapley Lawyers. The reason Williams J struck out the claim was that the res judicata doctrine applied.[2] That was because a claim by Mrs Barber against Ms Cottle that was dismissed by Mallon J in 2008,[3] arose from the same facts and was based on the same actions of Ms Cottle as those founding the present claim. Mrs Barber applied to this Court for an extension of time within which to appeal against the judgment of Mallon J in October 2009, some 18 months outside the relevant appeal period. This Court refused to grant the extension of time.[4]
[1]Reid and Barber v Cottle HC Palmerston North CIV 2010-454-582, 17 May 2011.
[2]Res judicata is a rule that parties to a proceeding in which a final judgment has been issued (and parties so closely associated with them that they are classified as privies) cannot relitigate matters decided in the earlier proceeding or that could have been litigated in the earlier proceeding.
[3]Barber v Cottle HC Palmerston North CIV 2004-454-756, 13 March 2008.
[4]Barber v Cottle [2010] NZCA 31.
Williams J found that the Marangairoa Trust, of which Mr Reid is a trustee, was a privy of Mrs Barber and Cooper Rapley Lawyers were privies of Ms Cottle. For that reason, the resolution of Mrs Barber’s claim against Ms Cottle in the judgment of Mallon J created a res judicata in relation to the claim made in the present proceedings. To the extent any new claim was made, the Limitation Act 1950 applied to prevent…

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 Reid v Cottle

Details

AGLC: Reid v Cottle [2014] NZCA 154
Case: [2014] NZCA 154
Decision Date: 17 April 2014 at 11 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from James Robert Reid against Suzanne Lynne Cottle and Cooper Rapley Lawyers. The appeal concerns an earlier decision of Williams J, who had struck out a claim made by Reid and Christine Barber as trustees of the Marangairoa Trust against Cottle and Cooper Rapley Lawyers. Williams J ruled that the claim was barred by the doctrine of res judicata, as it arose from the same facts and actions as a dismissed claim by Barber against Cottle. The Court of Appeal had previously refused an extension of time for Barber to appeal, and Williams J found that the Marangairoa Trust and Cooper Rapley Lawyers were privies of the earlier parties, making the res judicata doctrine applicable.

The legal issues before the Court of Appeal were whether the application for an extension of time to file the case on appeal and seek a hearing date was justified, and if not, whether costs should be awarded against the applicant. The applicant argued that the delay was due to unresolved matters, including the need for an amendment to the notice of appeal, a review of the refusal to waive security for costs, questions over the applicant's status as trustee, and the need for a transcript of the earlier hearing. The Court found that none of these issues provided a valid reason for the delay, as the amendment was filed well within the required timeframe, and the other issues did not directly impact the need to comply with the rules.

The Court of Appeal concluded that the appeal had no merit, as it was an attempt to relitigate a case that had already been decided against Barber, and the addition of the Marangairoa Trust and Cooper Rapley Lawyers did not change the outcome. The Court emphasised the importance of adhering to the six-month time limit for filing appeals, and noted that once this period had passed, an appellant requires the Court's positive discretion to continue. Given that the appeal had no prospect of success, the Court dismissed the application for an extension of time and ordered the applicant to pay costs to the respondents on a band A basis plus usual disbursements, with any excess security for costs to be refunded to the applicant.

Orders