Scenic Developments Ltd v Kelmarna Properties Ltd - [2004] NZCA 271

IN THE COURT OF APPEAL OF NEW ZEALAND
CA63/04
CA153/04
CA154/04
CA155/04
BETWEENSCENIC DEVELOPMENTS LIMITED

First Appellant
ANDBERNARD TERENCE WHIMP

Second Appellant

ANDKELMARNA PROPERTIES LIMITED

First Respondent
ANDVANCOUVER HEIGHTS LIMITED

Second Respondent
ANDFRANKTON HEIGHTS LIMITED

Third Respondent
ANDGENERAL MORTGAGE NOMINEES LIMITED

Fourth Respondent

Hearing:19 October 2004

Coram:Anderson P
Hammond J
William Young J
Appearances: D M Lester for Appellants

H D P van Schreven for Respondents

Judgment:10 November 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction
[1]       We have before us two applications:
·     The first application is for special leave to apply for an extension of time to appeal against two judgments of a procedural character which were delivered by John Hansen J on 11 March 2004 and 15 March 2004 respectively in CIV 2003-409-001781; and also to appeal against a costs ruling by the Judge in the same proceeding, which was delivered on 29 March 2004.
·     The second application is for leave to adduce fresh evidence on the hearing of those appeals, if the first application is granted. It is made pursuant to r 24 of the Court of Appeal (Civil) Rules 1997.

[2]       These applications are complicated by the fact that, in our view, the substantive appeal (which was filed timeously) has, in terms of r 10 of the Court of Appeal (Civil) Rules 1997, been abandoned. We will give our reasons for this view later in this judgment. It follows that this Court now has no jurisdiction to hear that appeal.
[3]       This case has a messy and unfortunate history, but in the particular circumstances now arising, we can deal with the applications succinctly.
Background
[4]       The litigation had its genesis in certain property dealings in Queenstown. The trial of the issues arising thereout was to come on for hearing in February of 2004. Timetabling orders and directions were given to advance the proceeding to that hearing. Unfortunately, there was marked non-compliance by the first appellants. There were also withdrawals of counsel for the appellants. In March of 2004 there was further non-compliance, this time with respect to orders for briefs. On 11 March 2004 John Hansen J made the first determination which is complained of, by making an “unless” order. Subsequently the Judge declined to reconsider that order, and the defence was struck out. That is the second matter complained of. On 16 March 2004 the Judge delivered judgment on the merits. Then, on 29 March 2004, costs went against the appellants, in the third of the judgments complained of. Then there followed the (timeous) appeal on the merits of the cause. Thereafter, the appellants’ case got into a procedural tangle, to which we now turn.
The application for special leave to appeal out of time
[5]       This application comes about this way.
[6]       It is common ground that a substantive appeal was filed (timeously) in this Court on 5 April 2004. By way of explanation, that appeal was allocated the number CA63/04.
[7]       On 21 April 2004 the Court of Appeal…

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 Scenic Developments Ltd v Kelmarna Properties Ltd

Details

AGLC: Scenic Developments Ltd v Kelmarna Properties Ltd [2004] NZCA 271
Case: [2004] NZCA 271
Decision Date: 10 November 2004

CaseChat Overview and Summary

Scenic Developments Limited and Bernard Terence Wimp, the appellants, sought leave to appeal out of time against three judgments made by John Hansen J and to adduce fresh evidence in support of the appeal. Kelmarna Properties Limited and others, the respondents, opposed the applications. The Court of Appeal had to determine whether it had jurisdiction to hear the applications for leave to appeal out of time and to adduce fresh evidence. The Court of Appeal held that the appellants' substantive appeal had been abandoned due to their failure to comply with Rule 10 of the Court of Appeal (Civil) Rules 1997, which required them to apply for a fixture and file the case on appeal within six months of the appeal being brought. The Court of Appeal also held that the applications for leave to appeal out of time and to adduce fresh evidence were dependent on the substantive appeal being alive, and since the substantive appeal had been abandoned, the applications were also abandoned. The Court of Appeal further held that even if it had jurisdiction to consider the applications, it would have dismissed them on discretionary grounds, as the appellants had failed to comply with timetabling orders and directions, had disruptive and delaying conduct, and the substantive appeal would be largely meaningless due to subsequent events.

The Court of Appeal dismissed all the applications and ordered the appellants to pay the respondents' costs of $3,000, together with their reasonable disbursements. The respondents' disbursements were to include the travel and accommodation expenses of counsel for the respondents. If the disbursements could not be agreed, they were to be fixed by the Registrar.

Orders