Reynolds v James - [2013] NZCA 413

IN THE COURT OF APPEAL OF NEW ZEALAND

CA608/2012
[2013] NZCA 413

BETWEEN	GRANT BRUCE REYNOLDS AS THE LIQUIDATOR OF JAMES DEVELOPMENTS LTD (IN LIQUIDATION) Applicant
AND	CHRIS JAMES Respondent

Hearing:	12 August 2013
Further submissions: Court:	13 August 2013 White, French and Asher JJ
Counsel:	A C Sorrell for Applicant M R Sherwood King for Respondent
Judgment:	2 September 2013 at 3.30 pm

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 granted.
BThe time for taking these steps is extended to 16 September 2013.

C Costs on this application are reserved.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

The applicant, Grant Bruce Reynolds, is the liquidator of James Developments Ltd (in liq) (the company). The respondent is Chris James who, at the material times, was the sole director of James Developments Ltd.
Mr Reynolds as liquidator applied for orders setting aside payments totalling $60,904 that James Developments Ltd had made in 2009 to Mr James.
On 22 August 2012, Associate Judge Bell determined that those payments to Mr James should be set aside as voidable under s 292 of the Companies Act 1993.[1] However, he also determined that the liquidator’s application for orders for payment of that amount, plus interest, should be dismissed. There were also other orders made that are not relevant to this application.
[1]Reynolds v James [2012] NZHC 2132.
A notice of appeal was filed within time on 19 September 2012. It was very full and set out the basis upon which it was submitted the judgment was incorrect.
However, no steps were then taken to obtain a hearing date and file the case on appeal for in excess of six months. Pursuant to r 43 of the Court of Appeal (Civil) Rules 2005, which then applied in its pre-amendment form, an appeal is to be treated as having been abandoned if an appellant does not take those steps within that period.[2]
[2]The time before an appeal will be deemed abandoned was reduced to three months as from 4 February 2013: Court of Appeal (Civil) Amendment Rules 2012, r 4(1).
The applicant now applies for an extension of time in which to take these steps.[3] Senior counsel for the applicant (who did not appear in support of the application) accepted that the delay was because of an error on her part. The parties were involved in other difficult litigation at the time that led to her overlooking the time limit. The application for an extension of time was filed approximately three weeks after the appeal was deemed abandoned.

Context

[3]Pursuant to r 43(2). No extension of time is possible more than three months after an appeal is deemed abandoned: r 43(3).

James Developments Ltd was a property developer in Queenstown. In October 2007, the company entered into an agreement to buy a property from Mana Property Trustee Ltd (Mana). The company…

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 Reynolds v James

Details

AGLC: Reynolds v James [2013] NZCA 413
Case: [2013] NZCA 413
Decision Date: 2 September 2013 at 3.30 pm

CaseChat Overview and Summary

The case of Reynolds v James involved a dispute between the liquidator of James Developments Ltd (the company), Grant Bruce Reynolds, and Chris James, the sole director of the company. Reynolds sought to set aside payments made by the company to James, which were considered voidable under the Companies Act 1993. The lower court determined that the payments should be set aside but dismissed the liquidator's application for orders requiring James to repay the amounts. The Court of Appeal in New Zealand heard an application for an extension of time to apply for the allocation of a hearing date and to file the case on appeal.

The main legal issue in this case was whether the Court of Appeal should grant an extension of time for the liquidator to file the case on appeal, given that the time limit for taking such steps had passed. The Court of Appeal considered various factors in deciding whether to grant an extension of time, including the length of the delay, the reasons for the delay, prejudice caused by the delay, and the merits of the proposed appeal.

The Court of Appeal found that the delay of three weeks was not significant, and Senior Counsel for the applicant accepted responsibility for the error. There was no suggestion of specific prejudice arising from the delay, and the Court was satisfied that the proposed appeal was not obviously without merit. The Court considered it appropriate to grant an extension of time to allow the appeal to proceed, and required the parties to deal with any other necessary matters promptly.

The Court granted the application for an extension of time to apply for the allocation of a hearing date and to file the case on appeal, extending the time for doing so to Monday, 16 September 2013. The Court decided to reserve costs and determine them when the appeal is resolved.

Orders