Robinson v Beaman
[2024] NZCA 387
•16 August 2024 at 12 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA727/2023 CA198/2024 [2024] NZCA 387 |
| BETWEEN | NATALIE CHRISTINE ROBINSON |
| AND | SHANE MICHAEL BEAMAN AND JARROD JASON BEAMAN |
| Court: | Palmer and Hinton JJ |
Counsel: | J S Cooper KC, E J H Morrison and J Leenoh for Appellant |
Judgment: | 16 August 2024 at 12 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe application for review of the Deputy Registrar’s decision is granted. The requirement to pay security for costs is revoked.
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REASONS OF THE COURT
(Given by Palmer J)
On 31 October 2022, Woolford J declined Ms Robinson’s application to have an email validated as a will.[1] He did not consider that the deceased had a settled testamentary intention at the time of the email.[2]
[1]Robinson v Beaman [2022] NZHC 2822 [substantive decision]. An appeal of the substantive decision was dismissed by this Court in Robinson v Beaman [2023] NZCA 468.
[2]At [32].
On 18 July 2023, Woolford J issued an interim costs judgment.[3] He considered costs should follow the event and should be awarded on an actual and reasonable basis, but invited further submissions as to the amount.[4] On 2 November 2023, Woolford J issued a final costs judgment ordering Ms Robinson to pay $134,858.68 to the first respondents and $40,000 plus GST to the second respondents.[5]
[3]Robinson v Beaman [2023] NZHC 1874 [interim costs decision].
[4]At [26], [28] and [31].
[5]Robinson v Beaman [2023] NZHC 3087 [final costs decision] at [24].
On 30 November 2023, Ms Robinson sought to appeal both costs decisions. On 28 March 2024, Goddard J directed that she would need to apply for an extension of time to appeal the interim costs judgment, which she then did on 5 April 2024. This judgment determines that application.
Ms Robinson also applied to review the Deputy Registrar’s decision to require security for costs. However, on 2 July 2024, she advised that she has been granted legal aid. We revoke the requirement to pay security for costs accordingly.[6]
Submissions
[6]Court of Appeal (Civil) Rules 2005, rr 7(b) and 35(11). Rule 36 does not apply, because Ms Robinson had not applied for legal aid at the time she brought this appeal: see r 36(1).
Counsel for Ms Robinson submits there is significant merit in the issues raised by the proposed appeal, the length of delay was relatively short and was due to an oversight by counsel, the appeal was filed as soon as the final determination of costs was issued, and there is no prejudice to the respondent.
The first respondents oppose the extension on the basis: the period of time is lengthy; the appellant’s oversight in respect of the interim decision should have been corrected by this Court’s security decision of 27 February 2024; there is a long history of non-cooperation and delay by the applicant; the appeal has no merit; and the case has caused one of the first respondents considerable prejudice and hardship. Out of pragmatism, the second respondents do not oppose the application for an extension of time.
Should an extension be granted?
An application for an extension of time may be made under r 29A of the Court of Appeal (Civil) Rules 2005. In Almond v Read, the Supreme Court summarised the principles guiding the exercise of the Court’s discretion.[7] Ultimately, the question is what the interests of justice require in the circumstances of the case. Relevant considerations are likely to include the length of the delay, the reasons for the delay, the conduct of the parties, any prejudice or hardship to the respondent, and the significance of the issues raised by the proposed appeal, both to the parties and more generally.[8] The merits of a proposed appeal may be relevant to the exercise of discretion but the merits will sometimes be overwhelmed by other factors, and an extension should only be refused for lack of merit where the appeal is clearly hopeless.[9]
[7]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39].
[8]At [38].
[9]At [39].
Here, the application was filed 148 days out of time. However, the original notice of appeal was within the time to appeal the final costs decision and was 76 days out of time in respect of the interim costs decision. The application was filed four working days after Goddard J directed an application for an extension of time was required. The will validation proceeding was “bitterly fought”,[10] which makes it difficult to assess the allegations of delay and non-cooperation at this point.
[10]Interim costs decision, above n Error! Bookmark not defined., at [18].
We consider the merits of the interim costs decision are effectively subsumed by the merits of the final costs decision. The appeal of the final costs decision will proceed anyway and it will be difficult to consider it without effectively considering the interim costs order. The applicant should not be penalised for her solicitor’s error.
Accordingly, we grant the application for an extension of time to appeal the interim costs decision.
In addition, Ms Ava Beaman, the second respondent, has now turned 18. She applies to discharge the litigation guardianship of her. This application is not necessary. Under r 4.48(1) of the High Court Rules 2016, Ms Beaman must file and serve an affidavit in the High Court confirming that she is no longer a minor. Rule 4.48(2) establishes that, from the date she attains full age and unless the court otherwise orders, the appointment of her litigation guardian ends, she must carry on all subsequent steps in the proceeding herself and is liable for the costs of the proceeding accordingly.
Result
The application for an extension of time to appeal is granted.
The application for a review of the Deputy Registrar’s decision is granted. The requirement to pay security for costs is revoked.
Solicitors:
K3 Legal Ltd, Auckland for Appellant
KooTelle Lawyers, Auckland for First Respondents
Ericson Lawyers, Auckland for Second Respondents
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