Sameer v Conroy Removals Limited - [2019] NZCA 173

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA279/2018
[2019] NZCA 173

BETWEEN	MADHU SAMEER Applicant
AND	CONROY REMOVALS LIMITED Respondent

Court:	Courtney and Collins JJ
Counsel:	Applicant in person S D Munro and C M O’Brien for Respondent
Judgment: (On the papers)	21 May 2019 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to file the case on appeal and apply for a hearing date is declined.
BNo order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Ms Sameer has applied for an extension of time to file the case on appeal and apply for a hearing date.[1]

Background

[1]Court of Appeal (Civil) Rules 2005, r 43(2).

On 17 April 2018, the High Court dismissed Ms Sameer’s application to set aside a bankruptcy notice issued by Conroy Removals Ltd (Conroy).[2] The notice concerned storage fees, which the Disputes Tribunal and District Court found Ms Sameer owed Conroy.[3] Ms Sameer was adjudged bankrupt on 16 April 2019 on Conroy’s application.
[2]Conroy Removals Ltd v Sameer [2018] NZHC 698.
[3]Sameer v Conroy Removals Ltd [2017] NZDC 26138.
On 21 May 2018, Ms Sameer filed a notice of appeal from the High Court judgment. The case on appeal was due to be filed no later than 31 October 2018. Ms Sameer did not meet this deadline. Instead, she became involved in applications to waive security for costs. It is not necessary to traverse all of the steps that followed in relation to the application to waive security for costs. Suffice to record that Brown J ultimately ruled Ms Sameer was required to pay $3,300 as security for costs.[4] She complied with this requirement within time on 4 December 2018.
[4]Sameer v Conroy Removals Ltd [2018] NZCA 499.
In the interim, on 10 October 2018, Ms Sameer filed an application for an extension of time to file the case on appeal and apply for a hearing date. On 20 November 2018, the Deputy Registrar issued a notice stating that Ms Sameer’s appeal was deemed to be abandoned as at 1 November 2018 pursuant to r 43 of the Court of Appeal (Civil) Rules 2005. On 4 December 2018, Ms Sameer filed a second application for an extension of time to file the case on appeal. It is that application that we are now required to determine.

Analysis

The factors we have considered in relation to Ms Sameer’s application are:
(a)the merits of the proposed appeal;
(b)the reasons why the appeal has not been prosecuted diligently; and
(c)whether latitude should be afforded to a lay litigant.

Merits of proposed appeal

Ms Sameer’s appeal alleges misconduct on the part of Conroy in relation to the shipping of Ms Sameer’s goods from the United States to New Zealand and fraudulent concealment of a bill of lading. Her allegations, however, have been fully tested and explored in the courts below and have been found to…

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 Sameer v Conroy Removals Limited

Details

AGLC: Sameer v Conroy Removals Limited [2019] NZCA 173
Case: [2019] NZCA 173
Decision Date: 21 May 2019 at 12.30 pm

CaseChat Overview and Summary

Madhu Sameer filed an appeal against a High Court decision which dismissed her application to set aside a bankruptcy notice issued by Conroy Removals Limited (Conroy). The appeal was dismissed by the Court of Appeal of New Zealand, with the appeal being deemed abandoned. Sameer applied for an extension of time to file the case on appeal and apply for a hearing date. The Court of Appeal considered the merits of the appeal, reasons for the delay in prosecuting the appeal, and whether latitude should be afforded to a lay litigant. The Court found that the proposed appeal had little merit, and the reasons for the delay in prosecution were inadequate. While some latitude was afforded to Sameer due to her lack of legal representation, it was not enough to overcome the other factors. The Court dismissed the application for an extension of time, and made no order as to costs.

Orders