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Robertson v Gilbert

Robertson v Gilbert

Case [2010] NZCA 429 21 September 2010

Appeal

Limitation Periods

Admissibility of Evidence

Compensatory Damages

Partition

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Civil Litigation & Procedure

Property Law

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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…

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 Robertson v Gilbert

Details

AGLC: Robertson v Gilbert [2010] NZCA 429
Case: [2010] NZCA 429
Decision Date: 21 September 2010

CaseChat Overview and Summary

The applicant, Ms Robertson, sought an extension of time to appeal the judgments of Priestley J ordering the partition of four lots of land on Kawau Island, in the Hauraki Gulf, north-east of Auckland. The appeal was to challenge the monetary adjustment of $23,100 to be paid by Ms Robertson to the respondents, and the inadequacy of the costs award in her favour. The Court of Appeal was required to decide whether to grant an extension of time to appeal. In considering the application, the Court examined the length of the delay, the reasons for the delay, the parties' conduct, the extent of prejudice caused by the delay, and the prospective merits of the appeal. The Court found that the appeal had no legs, that there was no proper reason for the delay, and that to grant an extension of time to appeal would not be in the interests of justice. The Court dismissed the application for an extension of time to appeal and the related applications. The applicant must pay the first respondent costs for a standard application for leave to appeal, Band A, and usual disbursements, and the second respondent the usual disbursements.

Orders