Sameer v Conroy Removals Limited
[2019] NZCA 173
•21 May 2019 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA279/2018 [2019] NZCA 173 |
| BETWEEN | MADHU SAMEER |
| AND | CONROY REMOVALS LIMITED |
| Court: | Courtney and Collins JJ |
Counsel: | Applicant in person |
Judgment: | 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.
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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 be devoid of merit. We see little prospect of those findings being altered by this Court.
Reasons for not prosecuting appeal
Ms Sameer says there are three reasons why she failed to meet the deadline for filing the case on appeal and for applying for a hearing date:
(a)the failure of the Deputy Registrar of this Court to address the security waiver application in a timely fashion;
(b)the Court’s closure over the Christmas period; and
(c)her late discovery of the “fraudulent concealment of a bill of lading”.
We have carefully assessed each of these arguments and are satisfied they do not provide adequate justification for Ms Sameer’s failure to prosecute her appeal in a timely fashion. Ms Sameer was given clear directions concerning the timetable she needed to adhere to in relation to filing the case on appeal and applying for a hearing date. While she may have been diverted by the security waiver applications, Ms Sameer was always aware of the need to comply with the timetables provided by the Court of Appeal (Civil) Rules 2005. The case on appeal had to be filed well before the Christmas vacation period and the discovery of the so-called fraudulently concealed bill of lading in December 2018 does not explain the failure to file the case on appeal well before then.
Lack of legal representation
While we are willing to give some latitude to Ms Sameer on account of her not being represented, we are satisfied that the lack of merits to the proposed appeal, and the absence of convincing reasons for Ms Sameer’s delays in prosecuting the appeal significantly outweigh any leeway we can extend to her on account of the fact she is not represented.
Other considerations
Finally, we are concerned that Ms Sameer has now been adjudged bankrupt. Section 61 of the Insolvency Act 2006 provides that, unless the adjudication is appealed, the adjudication is final and binding. This in itself renders her appeal to set aside the bankruptcy notice moot.[5]
Result
[5]Khan v Reid [2011] NZCA 22 at [6].
The application for an extension of time to file the case on appeal and apply for a hearing date is dismissed.
We make no order as to costs.
Solicitors:
Anderson Lloyd, Christchurch for Respondent
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