Sameer v Conroy Removals Limited
[2019] NZCA 108
•11 April 2019 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA279/2018 [2019] NZCA 108 |
| BETWEEN | MADHU SAMEER |
| AND | CONROY REMOVALS LIMITED |
| Counsel: | Appellant in person |
Judgment: | 11 April 2019 at 4.00 pm |
JUDGMENT OF BROWN J
AThe application for a stay is declined.
BAn order is made that the copies of the Anderson Lloyd letter dated 20 November 2018 are to be removed from the Court file.
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REASONS
Ms Sameer applies under r 12(3)(a) of the Court of Appeal (Civil) Rules 2005 (the Rules) for an order staying the High Court proceeding CIV-2017-409-535 pending the determination of her appeal CA279/2018. The application is opposed by the respondent (CRL).
Background
The original litigation
Ms Sameer issued proceedings in the Disputes Tribunal seeking to recover monies paid to CRL in respect of her goods that had been shipped by Right Move 4U (RM4U) from the United States to New Zealand and an order that those goods be delivered to her. CRL was RM4U’s New Zealand agent to take possession of the goods, clear them through Customs and arrange for delivery to Ms Sameer.
The Disputes Tribunal found there was a valid contract between Ms Sameer and CRL but her claim was unsuccessful and she was found liable to pay CRL $9,045.51 on its counterclaim for unpaid storage fees. Ms Sameer’s appeal to the District Court was unsuccessful and she was ordered to pay costs to CRL of $9,701.[1]
The judgment under appeal
[1]Sameer v Conroy Removals Ltd [2017] NZDC 26138.
On 11 August 2017 CRL issued a bankruptcy notice to Ms Sameer claiming payment of those two amounts. Ms Sameer applied in the High Court for an order setting the notice aside. On 17 April 2018 the High Court delivered judgment dismissing Ms Sameer’s application.[2]
Steps in this Court
[2]Conroy Removals Ltd v Sameer [2018] NZHC 698.
The last day for filing an appeal against the High Court judgment within time was 16 May 2018. Because Ms Sameer failed to do so, it was necessary for her to seek an extension of time under r 29A of the Rules. CRL’s initial opposition was withdrawn and the application for extension was granted on 31 July 2018.[3] The timetable for steps in the appeal were to apply as from that date. Ms Sameer was required to pay security for costs of $6,600 or seek dispensation from payment by 28 August 2018. The date for compliance with r 43 was set as 31 October 2018.
[3]Sameer v Conroy Removals Ltd CA279/2018, 31 July 2018 (Minute No 2).
Ms Sameer then applied to have the filing fee waived and sought dispensation from payment of security for costs. On 11 September 2018 the Deputy Registrar dismissed the application for waiver of the filing fee. On 16 October 2018 the Deputy Registrar dismissed the application to dispense with security for costs.
In a judgment delivered on 14 November 2018 Ms Sameer’s application for review of the former decision was dismissed.[4] However her application for review of the security for costs decision was granted. The amount of security was reduced to $3,300 to be paid by 12 December 2018.
[4]Sameer v Conroy Removals Ltd [2018] NZCA 499.
As Ms Sameer did not comply with r 43 by 31 October 2018, her appeal was deemed to be abandoned on 1 November 2018. She was advised of this in an email from the Court dated 20 November 2018.
On 4 December 2018 Ms Sameer filed an application under r 43(2) for an extension of time of 90 days within which to file the case on appeal and apply for a hearing date. The application was opposed. It is scheduled to be heard on the papers by two judges on 13 May 2019.
Ms Sameer did not file her case on appeal by 20 February 2019[5] or by 4 March 2019[6] or by 26 March 2019.[7]
[5]Being 90 days from 31 October 2018 but taking into account the period excluded from calculation by r 43(4).
[6]Being 90 days from the date of Ms Sameer’s application of 4 December 2018.
[7]Being 90 days from the date of Ms Sameer’s application but taking into account the period excluded from calculation by r 43(4).
Instead on 4 March 2019 she filed a memorandum in this Court seeking leave to file a document which she described as a Memorandum for Summary Adjudication. In the event that leave was not granted to file that document, she sought a further extension under r 43(2) of 60 days to file the case on appeal.
Steps in the High Court
Following the dismissal of her application to set aside the bankruptcy notice Ms Sameer applied in the High Court for an order staying the bankruptcy proceeding on the ground that she was appealing the judgment of 17 April 2018. The application was not opposed by CRL given that there was an appeal pending in this Court.
On 1 August 2018 Associate Judge Osborne ordered that further steps in CIV-2017-409-535 were stayed pending the determination of the appeal in CA279/2018.[8] However it was a condition of that stay that Ms Sameer was to diligently prosecute her appeal and by due date meet all timetable requirements in relation to the appeal. Leave was reserved to CRL to seek a review of the stay upon three days’ notice.
[8]Conroy Removals Ltd v Sameer HC Christchurch CIV-2017-409-535, 1 August 2018.
On 27 November 2018 counsel for CRL filed a memorandum in the High Court seeking orders that the stay be rescinded on the ground that Ms Sameer had failed to diligently prosecute her appeal. Reliance was placed on the fact that a notice of result had been issued by the Court of Appeal on 20 November 2018 recording that the appeal was deemed abandoned. That request was opposed by Ms Sameer.
On 14 December 2018 Associate Judge Matthews issued a minute recording that CRL’s request that the stay be rescinded would be considered once the Court of Appeal had reached a decision on Ms Sameer’s application of 4 December 2018 for an extension of time of 90 days to comply with r 43.
Following the filing on 4 March 2019 of Ms Sameer’s second application for an extension under r 43, on 11 March 2019 CRL filed a memorandum making an application to have the stay rescinded on the ground that Ms Sameer had failed to diligently prosecute her appeal, that being a condition of the stay. It submitted that whether or not the Court of Appeal had responded to the first extension of time application, Ms Sameer should still have got on and completed the case on appeal within the duration of the extension which she sought.
On 21 March 2019 Associate Judge Lester issued a judgment granting CRL’s application for an order lifting the stay.[9] The Judge reasoned among other things that the stay ordered by Associate Judge Osbourne had lapsed when Ms Sameer’s appeal was determined by the deemed abandonment on 1 November 2018. The Judge directed that the adjudication application be set down for hearing in the High Court on 16 April 2019.
[9]Conroy Removals Ltd v Sameer [2019] NZHC 527.
It appears that Ms Sameer then made a request for a recall of the judgment of Associate Judge Lester. That application was declined in a minute dated 8 April 2019, a copy of which has been forwarded to this Court by Ms Sameer.
The current application
On 28 March 2019 Ms Sameer filed in this Court an application for a stay of the High Court proceeding. The application, which is 10 pages in length and has several documents annexed, traverses much of the history. It appears to raise questions of abuse of process, frustration of contract and conspiracy.
Among the documents annexed to the application are two copies of a communication from Anderson Lloyd to Ms Sameer stated to be made on a “without prejudice save as to costs” basis. In a memorandum of 29 March 2019 CRL stated that it has not waived privilege over that communication and requested that it be removed from the Court file and any references to it within the application ignored.
That communication should not have been annexed to Ms Sameer’s application. An order is made that it be removed from the Court file accordingly.
Principles to be applied on stay application
In determining whether or not to grant a stay under r 12(3), the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”.[10] Factors to be taken into account in this balancing exercise include:[11]
(a)Whether the appeal may be rendered nugatory by the lack of a stay;
(b)The bona fides of the applicant as to the prosecution of the appeal;
(c)Whether the successful party will be injuriously affected by the stay;
(d)The effect on third parties;
(e)The novelty and importance of questions involved;
(f)The public interest in the proceeding; and
(g)The overall balance of convenience.
While that list does not include the apparent strength of the appeal, that has been treated as an additional factor.
[10]Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87.
[11]Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].
In its memorandum of 29 March 2019 CRL submitted that to allow the adjudication application to progress will not cause prejudice to Ms Sameer while a further stay would unduly prejudice CRL. It contended that Ms Sameer has sought to delay and protract her appeal at every opportunity and that her conduct demonstrates a flagrant disregard for the timeframes imposed by the Rules.
In an email sent to the Registry at 2.07 am this morning Ms Sameer stated that she had been very sick for the past seven days and hence had not had an opportunity to read CRL’s submissions. Her email revisited allegations of fraud and conspiracy on the part of CRL. Documents annexed included her 72 page opening brief in an appeal she has filed in the United States Court of Appeals for the Ninth Circuit in litigation she has brought against CRL, RM4U and several others.
Discussion
In her application for an extension of time dated 4 December 2018 Ms Sameer stated:
4. I request 90 day extension of time to submit my case on appeal (r 43) due to the fact that the payment of fee and security for costs has forced me to incur significant burden on me which forced me to take credit on the credit cards, a burden I am already struggling to carry. The submission entails having to print 5 copies of the records, which is an additional burden as I have to get these printed from a copy & print shop. The Christmas season placed additional burden on time and resources. In addition to these, I have filed a lawsuit in US against CRL and others under Hague Visby laws, and the pleading on that case is due this month.
Ms Sameer’s application for stay of 28 March 2019 records that for financial reasons on 24 December 2018 she left New Zealand and travelled to India. She states that her travel to India did not cause any delays because the Court had adjourned for the Christmas vacation. Her email to the Registry of 1 March 2019 indicated that she had “just returned” from India.
There is no indication that during the period from 4 December 2018 to 1 March 2019 Ms Sameer made any attempt to progress the preparation of a case on appeal with reference to her appeal, namely an appeal against the High Court judgment dismissing her application to set aside a bankruptcy notice. Ms Sameer’s focus on issues which are not the subject of her appeal to this Court was previously noted in the judgment on review of the Deputy Registrar’s decision.
[22] Ms Sameer’s 68-page notice of appeal is directed in substantial part to the decisions of the Disputes Tribunal and the District Court, which decisions are not the subject of appeal in this Court. The findings of fact in those decisions cannot be impugned on the current appeal. I share the Deputy Registrar’s view that Ms Sameer is attempting to relitigate issues previously determined by the Disputes Tribunal and in the District Court, despite it having been explained to her that those decisions are not under appeal.
Not only does it appear that Ms Sameer maintains her erroneous perception as to the ambit of the appeal, in the application for stay she foreshadowed a new issue:
There are various issued (sic) that are being raised on this appeal as argued in the NOA. A new issue that is now to be raised for the first time on appeal is whether the NZ Courts had jurisdiction to make these orders ie are the Judgments from various Court void as a matter of law?
Furthermore it appears that Ms Sameer does not have a present unconditional intention to prepare and file a case on appeal. In her memorandum of 4 March 2019 she made the following requests:
a) Request for Permission to File a Memorandum for Summary Adjudication before the case of appeal is filed
b) Request for Permission to Supplement Records on Appeal
c) Request for Permission for use of US Laws as contracted choice of laws.
If the Court denied her request for summary adjudication, then she requested a further extension of 60 days within which to file the case on appeal.
The process of “summary adjudication” is not a feature of this Court’s procedure, which is purely appellate. Some flavour of what Ms Sameer may have in contemplation can be gained from her memorandum:
22. I request permission to file a Memorandum for Summary Adjudication. Given the above history and background, and given the surfacing of the Bill of Lading in 2018, I believe an extensive appeal would be simply redundant, given the lack of jurisdiction of NZ Courts. Should the Court deny my request for summary adjudication, the Case On Appeal may be filed thereafter.
23. Alternately, I request permission and time to file a Memorandum in the High Court, seeking its tentative ruling on Memorandum for Summary Adjudication, so that the Appellate Court may remand the case back to the High Court on the basis of the newly discovered Bill of Lading which makes the Judgments of the NZ Courts void for lack of jurisdiction. Doing so would lead to judicial economy. Should the High Court deny my request to void Judgments, the Appellate Court may assume jurisdiction on the appeal.
It is demonstrably clear that Ms Sameer continues to focus on events that pre‑date the service of the bankruptcy notice and which are not the proper subject of her appeal. She does not appear to have any intention of advancing an appeal against the judgment dismissing her application to set aside the notice. Nor does she exhibit any present intention to compile a case on appeal directed to that matter.
On the contrary, her primary objective in her memorandum of 4 March 2019 is to pursue some other process. That appears to involve inviting reconsideration by the High Court, with the matter then returning to this Court if the High Court declined Ms Sameer’s request to “void” certain judgments, which I infer are those of the Disputes Tribunal and District Court on appeal.
In my view Ms Sameer’s conduct discloses that she does not have a bona fide intention to prosecute an appeal from the High Court’s judgment. That factor outweighs the consideration that the appeal may be rendered nugatory by the lack of a stay, which would be the outcome if Ms Sameer was adjudicated bankrupt and the Official Assignee elected not to proceed with the appeal. None of the other factors noted at [22] above are of significance. Nor do they collectively outweigh factor (b).
Result
The application for a stay is declined.
An order is made that the copies of the Anderson Lloyd letter dated 20 November 2018 are to be removed from the Court file.
Solicitors:
Anderson Lloyd, Christchurch for Respondent
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