Sergeant v Nigro
[2019] NZCA 238
•20 June 2019 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA516/2018 [2019] NZCA 238 |
| BETWEEN | CHARLES TE TOKOTU SERGEANT |
| AND | ADRIENNE MAREE NIGRO AND MICHAEL JOHN TAPSELL AS THE TRUSTEES OF THE TAPSELL FAMILY TRUST |
| Court: | Collins and Stevens JJ |
Counsel: | W T Nabney for Applicant |
Judgment: | 20 June 2019 at 11.30 am |
JUDGMENT OF THE COURT
The application for an extension of time to apply for a hearing date and file the case on appeal is granted.
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REASONS OF THE COURT
(Given by Collins J)
Introduction
Mr Sergeant wishes to appeal a decision of the High Court dated 8 August 2018, in which Associate Judge Andrew removed a caveat against the title to a property that is owned by the Tapsell Family Trust (the Trust).[1] The Trust was settled by Ms Tapsell, who was Mr Sergeant’s partner until she passed away in July 2016. Mr Sergeant and Ms Tapsell lived in the property for approximately 20 years. In November 2016, he lodged a caveat on the title to the property claiming an interest in the property under the Property (Relationships) Act 1976 and in equity.
[1]Nigro v Sergeant [2018] NZHC 1990.
Mr Sergeant filed his notice of appeal against the High Court decision on 31 August 2018. He was required to file a case on appeal by 30 November 2018, but failed to do so. On 4 December 2018, Mr Sergeant was advised that his appeal was deemed to be abandoned.[2] On 7 March 2019, he applied for an extension of time to bring his appeal.
Period of delay
[2]Court of Appeal (Civil) Rules 2005, r 43(1).
The application for an extension of time was filed a little over six months from the date of the filing of the notice of appeal.[3]
Reasons for the delay
[3]Rule 43(3).
Mr Sergeant was initially represented by a lawyer, who does not appear to have taken the steps that were required to protect Mr Sergeant’s position. He was granted civil legal aid on 21 December 2018. Mr Sergeant’s new counsel has filed the current application and an amended notice of appeal.
Prejudice
The property is subject to a mortgage. The Trust has defaulted in paying the mortgage and the trustees wish to avoid the property being sold at a mortgagee sale. Interest continues to accrue under the mortgage. These factors are a source of prejudice that weigh against Mr Sergeant’s application.
Significance of the issues raised
The appeal focuses upon Mr Sergeant’s personal circumstances. This is not a case that appears to raise any issue of wider public significance.
Assessment
Mr Sergeant’s appeal appears to have been frustrated by obstacles that can be attributed to his former lawyer. While the merits of his appeal do not appear to be particularly compelling, we consider it is in the overall interests of justice for Mr Sergeant to have one final opportunity to pursue his appeal. He will, however, need to adhere strictly to the timetable we set out below.
Result
The application for an extension of time to apply for a hearing date and file the case on appeal is granted.
Timetable
The case on appeal is to be filed and served by no later than 12 July 2019.
An application for the allocation of a hearing date is to be made by no later than 26 July 2019.
Solicitors:
Keam Standen, Tauranga for Applicant
Rejthar Stuart Law, Tauranga for Respondents
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