Robertson v Gilbert

[2010] NZCA 429

IN THE COURT OF APPEAL OF NEW ZEALAND

CA43/2010
[2010] NZCA 429

BETWEENANNE IVRES ROBERTSON

Applicant

ANDEVELYN KAYE GILBERT

First Respondent

ANDHERC ROSS COLEMAN

Second Respondent

ANDJANICE ANNE BENTON

Third Respondent

ANDJUSTIN ROBERT COLEMAN AND JACQUELINE BERYL COLEMAN

Fourth Respondents

ANDROSS THOMAS HANSEN AND WENDY MAY HANSEN

Fifth Respondents

ANDKENNETH TAIT

Sixth Respondent

Hearing:14 September 2010

Court:Glazebrook, Hammond and Ellen France JJ

Counsel:Applicant in person

J A R Cox for First Respondent
H R Coleman in person

Judgment:21 September 2010 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal and related applications are dismissed.

BThe applicant must pay the first respondent costs for a standard application for leave to appeal, Band A, and usual disbursements.  The applicant must pay the second respondent the usual disbursements.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1]        On the face of it this is an application for an extension of time to appeal a judgment of Priestley J delivered on 20 July 2007[1] (the 2007 judgment) and various orders subsequent thereto in a partition proceeding.  It appears however that the proposed grounds of appeal also constitute a challenge to a judgment of Priestley J of 2 November 2005.[2]

[1]      Robertson v Gilbert HC Auckland CIV-2001-404-3141, 20 July 2007.

[2]      Robertson v Gilbert HC Auckland CIV-2001-404-3141, 2 November 2005.

[2]        The subject of the dispute is the partition of four lots of land, held as tenancies in common, on Kawau Island in the Hauraki Gulf, north-east of Auckland.  Proceedings by the applicant seeking partition were commenced in 2001 and partition was ultimately ordered,[3] on various terms later directed by the High Court.[4]

[3]      Robertson v Gilbert HC Auckland CIV-2001-404-3141, 24 May 2002.

[4]      Robertson v Gilbert HC Auckland CIV-2001-404-3141, 2 November 2005.

[3]        However, though successful in gaining partition, Ms Robertson remains dissatisfied with the terms of the partition and with certain associated orders.  In particular, Ms Robertson complains about a monetary adjustment of $23,100 to be paid by her to the respondents, and the inadequacy of a costs award in her favour.  Although by the application in front of us Ms Robertson disclaims any “attempt to reopen the argument” on the division of the property, the grounds of the appeal suggest the intention is otherwise.

[4]        We are not minded to grant an extension of time to appeal.  Usually, only short reasons would be given for such a decision.  But this decision will have the effect of terminating years of difficult litigation, and much human trauma, and it is important to do what we can to endeavour to lay the dispute to rest.

The land

[5]        Kawau Island lies nearly 50 km north-east of Auckland in the Hauraki Gulf.  From 1862 it was the private residence of Sir George Grey, Governor of New Zealand for two terms, the second ending in 1868.  During his tenure there Sir George populated the island with exotic flora and fauna, some of which remains.  There is a small permanent population.  Much of the island is covered in native bush.  Generally speaking the island is easily accessible by boat from the mainland.  All of these features make it a desirable place for holiday-makers, including those seeking their own piece of the Island to return to.  However, some areas are less readily accessible than others.

[6]        One such area is the land adjoining the foreshore of the upper reaches of North Cove, towards the northern end of the island.  North Cove is estuarine.  Its passage depends on the tide.  It is where the four disputed parcels of land are located.  They are Lots 147, 148, 149 and 152.  Each of these Lots descends from the top of a ridgeline down to a small strip adjoining the North Cove foreshore.  Each is almost entirely covered in native bush.  Historically, only Lot 152 enjoyed the benefit of an easement enabling access to Vivian Bay, which is on the northern coast of the island over the other side of the ridge.  There is a wharf there allowing landing at all tides and which is also served by ferry.  Access to Vivian Bay from the other Lots is only informally tolerated.

The parties

[7]        The first respondent, Mrs Gilbert, and the second respondent, Mr Coleman, are brother and sister.  They have held shares in the Lots as tenants in common since 1960.  Ms Robertson acquired her shares in 1997 and 1998, from the purchase of a quarter share of another member of the Coleman family.  Ms Robertson owns upwards of 25 per cent in each of the Lots, rising to 30 per cent in the case of Lot 148.  The third through to sixth respondents, who also own shares in the land, have apparently not taken any real part in the proceedings to date: the real dispute is between Ms Robertson and Mrs Gilbert and Mr Coleman.  Broadly speaking, the dispute arose out of arguments in administering the agreement governing how the tenants in common were to enjoy their shares in the land.

Eight years in the High Court

[8]        It is necessary to summarise the prolonged proceedings which then followed. 

[9]        Initially, the issue was whether an order for partition could even be made, the defendants arguing that Ms Robertson had waived her right under the Partition Act 1539[5] to seek partition.  Associate Judge Faire considered it doubtful that waiver of that right was possible but that, regardless, as a matter of construction of the various agreements, it could not be said that Ms Robertson had purported to waive that right.[6]  Partition was thus ordered, but the matter of how to implement that order was left to a second hearing.

[5]Partition Act 1539 (Eng) 31 Hen VIII c 1, repealed with effect from 1 January 2008 by Property Law Act 2007, s 365(2)(c). 

[6] At [29].

[10]       That hearing took place before Priestley J between February 2003 and August 2004.  Much of the delay was a result of the difficulties in arranging for the Judge and his officials to visit the site.  In addition to his Honour’s own observations from the site visit, he had the benefit of the report of experts, appointed under the High Court Rules, as to the best means of dividing up the land.  An initial judgment was delivered on 10 December 2004.[7]  The Judge noted that “There is no “right” or “ideal” partition option.”[8]  His Honour accepted, in large part, the partition the experts proposed, and gave conclusive orders as to the partition of Lot 152.  But orders were made for a supplementary report to deal with remaining concerns with respect to Lots 147, 148 and 149.

[7]      Robertson v Gilbert HC Auckland CIV-2001-404-3141, 10 December 2005.

[8] At [31].

[11]       The Judge, having received and considered the supplementary report, delivered a second and “final” judgment on 2 November 2005 to the effect that Lot 3 as depicted in the supplementary report was to be Ms Robertson’s own part of the partitioned land.  Lot 3 is carved out of the land available in Lots 147, 148 and 149, considered as a whole.  That ought to have settled the matter although, as the Judge noted, those orders were subject to resource consent being obtained.  It appears an appeal to this Court against the judgment was filed but discontinued.  There was also litigation in the Environment Court and also related proceedings in the High Court as to the granting of resource consent, but that is of no moment in this application.

[12]       In the November 2005 judgment, the Judge made reference to a Minute he had issued in May 2005.  It appears that he calculated that Ms Robertson should make a monetary adjustment of $23,100 to the other proprietors, as she had received a benefit from the partition disproportionate to her share as a tenant in common.  In effect the Judge ordered that the adjustment was payable.[9]  The Judge also sought memoranda as to costs, to which he considered Ms Robertson was entitled, in essence as a successful plaintiff. 

[9] At [11].

[13]       There was then a further hearing as to costs, and also as to the defendants’ past and future compliance with restraints placed on their participation in the resource consent process (including the Environment Court proceedings).  We do not need to refer to those aspects of the judgment relating to resource consents.  In the 2007 judgment the Judge awarded Ms Robertson costs of $36,250.

[14]       In the interim, Ms Robertson took bankruptcy proceedings against Mrs Gilbert.  Mrs Gilbert applied to set aside the demand made by Ms Robertson for costs.  Associate Judge Doogue said that “the bankruptcy notice ought never to have been served”.[10]  That was primarily because a cheque for $13,250, being the difference between the monetary adjustment and the costs award, had been proffered by Mrs Gilbert and in the end banked by Ms Robertson.  The Associate Judge noted a Minute of 18 December 2007 issued by the Registrar observing Priestley J’s comment that “It was understood that costs and the adjustment would be set off against each other”.[11]

[10]      Gilbert v Robertson HC Auckland CIV 2007-404-7449, 19 February 2008 at [17].

[11] At [12].

[15]       Following all this litigation, resource consents were eventually granted.  Yet Ms Robertson has refused to execute the documents transferring the title in Lot 3 to her.  Priestley J, having received a memorandum from solicitors for Mr Coleman, then gave orders on 21 August 2009 requiring Ms Robertson to complete the transfers.  Ms Robertson applied on 30 September 2009 to set aside those orders.  In a Minute, Potter J deferred the application to a teleconference to be held with Priestley J.  After that teleconference Priestley J recalled those orders, primarily because Ms Robertson had not had the opportunity, as a result of administrative oversight at the Court, to comment on the memorandum.

The application for leave to appeal

[16]       On 22 October 2009 this Court received Ms Robertson’s Notice of Application for Leave to Appeal (dated 18 October 2009) appealing the 2007 judgment as well as “sub-judgments”, but it appears from the file the application may not have been in acceptable form until 15 February 2010.

[17]       By that Notice, Ms Robertson seeks leave to appeal against the costs award and the monetary adjustment.  The appeal is expressed as being on the grounds that:

(a)The building site, for which the monetary adjustment is supposed to be paid, was paid for in 1997.

(b)The costs order of 20 July 2007 was unreasonable and unjustly inadequate.

(c)The Court refused to allow just and proper cross-examination of evidence.

(d)The Court did not adhere to the agreed criteria, which the division of Lots 147, 148 and 149 was to meet.

(e)The final plan for the partitioning of Lots 147-149 is unfair and unjust.

[18]       Clearly Ms Robertson continues to be wholly dissatisfied with the outcome of the partition.  She says that leave should be granted because otherwise an injustice would result.  The judgment she seeks from this Court is the reversal of the monetary adjustment order; a variation to the costs order increasing quantum; and an order that Priestley J recuse himself from further High Court proceedings.  In effect she really wants a rehearing.

[19]       Ms Robertson’s work takes her around the country, and earlier in the year took her to Australia.  She twice sought an adjournment of an earlier fixture set down for the miscellaneous motions list of 16 March 2010 on the basis that she was self-represented and that it would be impossible for her to prepare for and appear at the hearing.  The adjournment was granted on the second application subject to “unless orders”.  Those orders were subsequently complied with. 

[20]       One of those orders was that “Security for costs on the intended appeal are to be paid by [25 May 2010]” (emphasis added).  Security for costs was paid timeously at the rate for an application for leave to appeal, being in this case $4,740.  By way of two letters to the Registrar dated 28 June 2010 and 24 August 2010 respectively, solicitors for Mrs Gilbert take issue with the amount of security for costs paid.  They say that the “unless orders” have not been complied with because security has only been paid as required for the application – not for the intended appeal itself.  Thus, they say the application should be dismissed.  There is nothing in this point; Ms Robertson has complied with what this Court had in contemplation.

The applicable principles for leave

[21]       By r 29(1) of the Court of Appeal (Civil) Rules 2005 a party must bring an appeal (that is as of right) within 20 days of the decision appealed against.  This appeal is clearly hopelessly out of time, even for the 2007 judgment. 

[22]       In fairness to Ms Robertson, it is not as if this application comes after a complete hiatus since July 2007.  As recorded above, the last matter, Priestley J recalling his orders of May 2009, was dealt with on 14 October 2009.  It appears the Minute of that date may have prompted the present application.  Ms Robertson seems to think that because “things were still happening”, as she said in argument, the proceedings could still be appealed.

[23]       But in law, a party who fails to file an appeal within 20 days of the decision appealed against has to apply for an extension of time to appeal under r 29A.  If that application is opposed, as this one is, then the application effectively becomes one for leave to appeal.[12]

[12]      Rule 29A(4).

[24]       As confirmed recently by this Court in My Noodle Ltd v Queenstown-Lakes District Council[13] and in Barber v Cottle[14] the overarching consideration in determining whether to grant an extension is where the interests of justice lie. This is a long-standing and settled principle. Relevant considerations assisting in that inquiry are the length of delay, the reasons for the delay, the parties’ conduct, the extent of prejudice caused by the delay,[15] and the prospective merits of the appeal. Leave will be declined where the appeal has no legs.[16]  But the interests of justice may require that leave be granted, not necessarily simply because the merits appear strong, but where there is insufficient material before the Court to exclude the possibility that there is merit.[17]

[13]      My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518.

[14]Barber v Cottle [2010] NZCA 31. See also Havanaco Ltd v Stewart (2005) 17 PRNZ 622 and the authorities there cited.

[15]New Plymouth District Council v Waitara Leaseholders Association Inc [2007] NZCA 80 at [22].

[16]      For example in Khan v Reid [2010] NZCA 391.

[17]      As in Sharda Holdings Ltd v Gasoline Alley Services Ltd [2010] NZCA 225.

[25]       At face value, there appears to be conflicting authority as to the relevance of the public importance of proposed appeals in determining applications such as this.  In Barber v Cottle it was said to be a relevant consideration.[18]  In My Noodle Ltd however, the Court distinguished applications for extensions of time from applications for special leave,[19] with the consequence that the public importance of the proposed appeal was not a point for particular emphasis.  In practice this confusion may well arise out of the fact that many applications for special leave are made out of time and so the separate jurisdictions coincide to a degree.  In any event, this is not a “public importance” case; it involves the resolution of a private law property dispute on settled principles.

Submissions

[18] Above, at [6].

[19]      See the discussion at [12]-[16].

[26]       As we have already noted, most of Ms Robertson’s submissions are concerned with the perceived injustice of the eventual partition of the land.  Tied up with that complaint is the applicant’s perception that the conduct of the proceeding by the Judge was “unjust”.  The applicant suggests that the Judge was wrong in appointing and relying on experts in implementing the orders to partition the land.  The applicant said that was unnecessary because the Judge already had before him proposed plans from both sides of the dispute.  What was required, she submits, was for the Judge to determine the correct partition himself, rather than adopt the – Ms Robertson claims deficient – reports of the experts.  The approach alleged is also, Ms Robertson says, evidenced in the Court’s attempts to appoint counsel to assist the Court.

[27]       Further, there is a complaint that at no stage was she given the opportunity to cross-examine the experts on the substance of their reports.  She has a related concern that she says, during the site visit the Judge took the court experts aside and spoke to them in the absence of the parties. 

[28]       As to the monetary adjustment, it is said that the order was made on the basis of an error of fact.  Ms Robertson says the amount should have been $15,000 instead of $23,100.  The substance of Priestley J’s reasoning in arriving at that figure is contained in his Minute of 20 May 2005.  It is also submitted that the Judge failed to take into account that the partition merely delivered what Ms Robertson says she had always been entitled to under a licence to occupy granted her on acquiring the shares in the property.

[29]       As to costs, the submission is that the amount awarded ($36,250) is inadequate.  This in particular because of time wasted owing to the conduct of the self-represented defendants.

[30]       The respondents characterise this application as “raking over old coals” and an abuse of process.  Accordingly, they say that it should be declined.

[31]       Mr Coleman also makes the point that in fact the monetary adjustment was ordered in the 2005 judgment, and given that judgment is not expressly sought to be appealed, this Court has no jurisdiction to entertain the application.  However he asks for the question to be determined in any event in the interests of finality.  The Court, if necessary, may grant leave to amend the notice of application to facilitate this.[20]

Discussion

Delay

[20]      Rule 19(3).

[32]       No reason is given for the delay in appealing the 2007 decision, let alone the 2005 decision.  The delay is around two and half years in respect of the former, and over four years in respect of the latter.  As noted, it may be that it was only the most recent involvement of the High Court (the Minute flowing from the teleconference of 14 October 2009) that prompted this application.  But this is a situation in which there has been a very lengthy delay for no proper reason which we can discern.

Conduct of the parties

[33]       Each side has accused the other of unnecessarily prolonging proceedings.  In the 2007 judgment Priestley J noted that the second respondent’s refusal to seek legal advice had unnecessarily prolonged proceedings.  But the Judge said the applicant had also to assume some responsibility.  There is no proper reason to call into question the Judge’s assessment that neither side has been blameless. 

Prejudice

[34]       The subdivision has been approved.  All that is now to be done is the applicant’s execution of the transfers.  The respondents have expended significant monies in getting to that point, in reliance on the unchallenged (until latterly) judgments of the High Court.

Merits

(i)          The actual partition

[35]       As to the merits of the actual partition ordered – even assuming for the sake of argument that they can be considered on this application for leave to appeal the costs judgment – what has eventuated is a partition, with adjustments to achieve equality.  There can hardly be any quibble with that principle.  The mechanics of achieving the principle in partition cases can be difficult, but the High Court had the benefit of experts appointed to assist it, and in the result did act significantly – but not wholly – on their advice.

[36]       It should be added that one expert was a surveyor, the other a valuer.  It should also be noted that the Judge had the benefit of a visit to the Island which he found to be “of immense value”.[21]  Far from capitulating to the experts, as Ms Robertson has suggested, he set out further matters for them to take into account, and his judgment plainly represents “his” independent views.  Further, we are satisfied that the various parties were able to make their points to the Judge.

[21] At [21].

[37]       An assertion that the resultant partition was “unfair” would face huge difficulties.  There was no perfect, or even obvious solution, in the complex situation described by the Judge.  In fact, neither side got everything they really wanted, which is not at all unusual in partition cases.

(ii)         Costs

[38]       It is said the costs award for Ms Robertson is inadequate.  It is established principle that in reviewing costs awards:[22]

An appellate court should not interfere unless satisfied that the Judge who made the order acted on a wrong principle, or failed to take into account some relevant matter, or took account of some irrelevant matter, or was plainly wrong.

[22]      Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [15].

[39]       Costs are a matter of discretion for the Judge, but the discretion is to be exercised in a principled way[23] and in accordance with the High Court Rules. 

[23] Ibid at [16].

[40]       The Judge directed himself to the High Court Rules.  He had the submissions of counsel for Ms Robertson and Mrs Gilbert.  He also referred to the relevant authorities.  He weighed the relevant factors and itemised the composition of the final award.  The applicant does not point to an error of principle or some other feature that would justify this Court interfering in the costs awarded in the Judge’s discretion. 

(iii)        The monetary adjustment

[41]       As to the monetary adjustment, it is submitted that the calculation is “wrong”.  This monetary adjustment represents the difference in value between what Ms Robertson’s nominal share of Lots 147, 148 and 149 would entitle her to, and the value of Lot 3 (her land post-partition) as a proportion of Lots 147, 148 and 149.  She claims that the difference is $15,000, given that Lot 3 is worth one third ($150,000) of the total value of Lots 147, 148 and 149, being $450,000; whereas her share was to be calculated at 30 per cent, amounting to $135,000 as a proportion of the total value of Lots 147, 148 and 149.

[42]       The experts appointed by the Court calculated the adjustment on the basis that Ms Robertson held a share of 28.2 per cent (being the average of her holding across the three Lots), which, as a proportion of the total value of the property was $126,900.  The Judge had directed that:[24]

... if the value of the plaintiff’s lot exceeds 30% of the total value of the three lots then the experts are directed to quantify the value of such excess so that the Court can consider some form of monetary adjustment.

[24] At [34].

[43]       Ms Robertson seems to have taken that to mean that in the event of an adjustment, she would only have to pay the value of the excess above 30 per cent.  However, that is not the only possible reading.  It may also have been, and presumably was, given his subsequent Minute of 20 May 2005, the Judge’s intention that an adjustment would only be considered if the 30 per cent threshold was met, but that in the event of such excess the adjustment would reflect the total excess above Ms Robertson’s actual share.  In other words, the 30 per cent threshold was the point above which a monetary adjustment would be worthwhile.  There is nothing before this Court to suggest the Judge made the factual error alleged.

[44]       The second point taken in challenging the monetary adjustment is that the Judge failed to take into account the physical discrepancies between Lot 3 and the site Ms Robertson had been accustomed to using.  She also takes issue with the positioning of the site, suggesting that it affects its value.  One example given is that the track leading to the ridgeline (and thus opening the way to Vivian Bay), is, as acknowledged by the court-appointed experts, “a track to nowhere”.  But it is clear from the context of their report of 29 July 2005 that was simply recognition that there was no right of way access from Lot 148 to Vivian Bay, as was always the case.  There was never the possibility of the Court making provision for such access, since the landowners of the would-be servient tenements were not party to the proceeding. 

Resolution

[45]       As early as the December 2004 judgment, the Judge correctly said, “There is no “right” or “ideal” partition option.”[25]  Having brought proceedings seeking partition the applicant remains dissatisfied with the partition that has actually eventuated.  And although she has had the costs awarded paid to her, the applicant has not paid the monetary adjustment required of her.  It is plain that she wishes to revisit, on appeal, the fundamentals of the partition.

[25] At [31].

[46]       The High Court has endeavoured to assist the parties throughout this tortuous litigation.  From the record, it is clear that the Court has been sensitive to the parties’ concerns and, contrary to the applicant’s submissions, has been conscientious in addressing them. 

[47]       In our view, there is nothing in the asserted merits of the proposed appeal that would justify granting an extension of time to appeal, especially given the length of the delay, the absence of any proper explanation for that delay, and the respondents’ reliance on the various judgments on which they stood.  To do so would not be in the interests of justice.

[48]       We encourage the parties henceforth to make the partition, as ordered, work.  This will enable them to get on with their lives.

Result

[49]       The application for an extension of time to appeal and the related applications are dismissed.

[50]       As to costs, the applicant must pay the first respondent costs for a standard application for leave to appeal, Band A, and usual disbursements.  The applicant must pay the second respondent the usual disbursements.

Solicitors:

Blomkamp Cox, Auckland for First Respondent