Sameer v Conroy Removals Limited - [2019] NZCA 108

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA279/2018
[2019] NZCA 108

BETWEEN	MADHU SAMEER Appellant
AND	CONROY REMOVALS LIMITED Respondent

Counsel:	Appellant in person S D Munro and C M O’Brien for Respondent
Judgment: (On the papers)	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 CRL’s initial opposition was withdrawn and the application for extension was granted on 31 July 2018.[3] The timetable for steps in the appeal were to apply as from that date.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…

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 108
Case: [2019] NZCA 108
Decision Date: 11 April 2019 at 4.00 pm

CaseChat Overview and Summary

Madhu Sameer appeals against the High Court’s refusal to rescind a stay of bankruptcy proceedings. The appeal is against the judgment of 17 April 2018 in which the High Court dismissed Ms Sameer’s application to set aside a bankruptcy notice. Conroy Removals Limited (CRL) opposes the application. The central issue is whether the Court of Appeal should grant Ms Sameer’s application for a stay of the bankruptcy proceedings. The Court of Appeal considered the balance of convenience, the apparent strength of the appeal, the bona fides of Ms Sameer in prosecuting the appeal, and the effect on CRL. It found that Ms Sameer had not made any attempt to progress the appeal and did not appear to have a present intention to prosecute the appeal. The Court concluded that Ms Sameer’s conduct showed she did not have a bona fide intention to prosecute an appeal from the High Court’s judgment. Accordingly, the application for a stay is declined.

The Court made an order that copies of a communication from Anderson Lloyd dated 20 November 2018 are to be removed from the Court file.

Orders