Scott v Scott - [2009] NZCA 255

IN THE COURT OF APPEAL OF NEW ZEALAND
CA634/2008
[2009] NZCA 255
BETWEENLEWTYN MICHAEL SCOTT

Appellant

ANDROSEMARY ANN SCOTT

First Respondent
ANDLEE MCNEILLY

Second Respondent
ANDALISON SCOTT

Third Respondent
ANDCARA ANN CLARE

Fourth Respondent

Hearing:16 June 2009

Court:Hammond, O'Regan and Ellen France JJ
Counsel:No appearance for Appellant

R E Harrison QC for Respondents

Judgment:19 June 2009 at 4 pm

JUDGMENT OF THE COURT

AThe application for an extension of time for applying for the allocation of a hearing date and filing the Case on Appeal is dismissed.
BThe respondents are granted leave to withdraw the cross-appeal.
CThe appellant must pay to the respondents, collectively, costs for a standard appeal on the appeal, the cross-appeal, and on this application, on a band A basis, together with usual disbursements.
DThe Registrar is to release to the respondents their security for costs on their cross-appeal. The security for costs paid by the appellant is to be released by the Registrar to the respondents, to defray (in part) the costs payable to them by the appellant.

REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]       We have before us an application made pursuant to r 43(2)(a) of the Court of Appeal (Civil) Rules 2005 for an extension of time for applying for the allocation of a hearing date and filing the Case on Appeal.
[2]       The judgment which is sought to be appealed is that of Stevens J: HC TAU CIV-2004-470-0094 15 September 2008.
[3]       Notice of appeal was given timeously on 13 October 2008 and a notice of cross-appeal was given on 22 October 2008. By r 43(1), the appellant had six months after the date of bringing an appeal to apply for the allocation of a hearing date and file the Case on Appeal. That has not been done. The extension of time was applied for on 2 April 2009, just before the six month period expired.
[4]       The opposition to applications of this character is sometimes lukewarm and turns as much on conditions to be imposed on the application being granted as anything else. Doubtless this is because counsel rightly recognise that this Court is reluctant to see appeal rights set aside: the expectation of at least one right of appeal is a well ingrained feature of our jurisprudence. However, in this instance, the application was strongly resisted by Dr Harrison QC. Inevitably, such an application must be grounded in the circumstances of the particular case, to which we now turn.
Background facts
[5]       This litigation relates to a long-running and self-evidently bitter family dispute over two farm properties, which had been in the family for many years.
[6]       In his personal capacity, the appellant, Mr Lewtyn Scott, purchased from himself, his mother, Rosemary Scott, and his sister, Lee McNeilly, in their capacity as executors and trustees of the estate of A R Scott (his father), the estate’s half interest in Tombstone Station farm (Tombstone). The other half interest was and is owned by Rosemary.
[7]       Mr Scott’s purchase was…

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 Scott v Scott

Details

AGLC: Scott v Scott [2009] NZCA 255
Case: [2009] NZCA 255
Decision Date: 19 June 2009

CaseChat Overview and Summary

Lewtyn Michael Scott, the appellant, sought an extension of time to apply for the allocation of a hearing date and file the Case on Appeal against Rosemary Ann Scott, Lee McNeilly, Alison Scott, and Cara Clare, the respondents, in a case concerning the ownership of two farm properties. The appeal was from a decision of Stevens J, made on 15 September 2008, in the High Court at Tauranga (Stevens J: HC TAU CIV-2004-470-0094). The appellant had filed a notice of appeal on 13 October 2008 and the respondents filed a notice of cross-appeal on 22 October 2008. The application for an extension of time was filed on 2 April 2009, just before the six-month period expired. The application was strongly opposed by Dr Harrison QC, who argued that the appellant's conduct disentitles him to the grant of an extension, that the reasons for seeking an extension were completely without merit, and that the underlying appeal was also without merit. The Court considered that the delays in prosecuting the appeal were inordinate and that the respondents had been trying to resolve the case for a long time, while the appellant had taken refuge in delaying tactics. The Court dismissed the application for an extension of time and granted the respondents leave to withdraw the cross-appeal. The appellant was ordered to pay costs for a standard appeal on the appeal, the cross-appeal, and on the application, on a band A basis, together with usual disbursements. The Registrar was also ordered to release to the respondents their security for costs on their cross-appeal, and the security for costs paid by the appellant on the appeal was to be released by the Registrar to the respondents, to defray (in part) the costs payable to them by the appellant.

The Court considered the reasons for the appellant's delay in prosecuting the appeal and found them to be completely without merit. The appellant had engaged ten firms of solicitors since the original dispute arose and had changed lawyers routinely at the last moment. The Court found that the appellant's delays in relation to his pursuit of the appeal needed to be considered in the context of his long history of defaults throughout the High Court litigation. The Court also considered the merits of the underlying appeal and found that the delays in the ultimate resolution of the case appeared to have lain distinctly at the appellant's door. The Court concluded that the delays and prevarications were very bad and that the merits of the case were not strong. The respondents were prejudiced, and at some point, a court had to say "enough is enough." Civil litigation could not be blighted by contrived delays. The Court dismissed the application for an extension of time and granted the respondents leave to withdraw the cross-appeal. The appellant was ordered to pay costs for a standard appeal on the appeal, the cross-appeal, and on the application, on a band A basis, together with usual disbursements. The Registrar was also ordered to release to the respondents their security for costs on their cross-appeal, and the security for costs paid by the appellant on the appeal was to be released by the Registrar to the respondents, to defray (in part) the costs payable to them by the appellant.

Orders