Shafik v Makary - [2015] NZHC 1764

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2014-412-000176 [2015] NZHC 1764

BETWEEN
SHERIF SHAFIK

Apellant

AND

NAGY ALBERT MAKARY Respondent

Hearing: 29 July 2015

Appearances:

R S Pidgeon for Appellant
N A Till QC for Respondent

Judgment:

29 July 2015

ORAL JUDGMENT OF GENDALL J

[1] Some time ago an appeal against a summary judgment decision given by Judge Crosbie in the District Court was filed by the appellant. That appeal was set down for hearing today, 29 July 2015.

[2] Mr Pidgeon appeared today as counsel for the appellant. Mr Till QC

appeared as counsel for the respondent.

[3] Before me, Mr Pidgeon at the outset of this hearing indicated for the first time that effectively to all intents and purposes this appeal against the substantive summary judgment decision in the District Court was abandoned. There was earlier, as I understand it, a suggestion that the appeal today might proceed with respect to quantum issues but Mr Pidgeon confirmed, but only today, that this was now not to be the case.

[4] Mr Pidgeon went on, however, to contend that there was one small matter raised in the original notice of appeal (dated 6 October 2014) which was still

SHAFIK v MAKARY [2015] NZHC 1764 [29 July 2015]

outstanding. This related to a ground outlined at paragraph 2.i. of the original notice of appeal which stated:

2.The grounds of the appeal are that the Learned District Court Judge erred in fact and law in the following respects:

…

i. That the decision of the District Court Judge to award the Plaintiff costs and disbursements on the adjournment of the August hearing was both unreasonable and erroneous on point of law.

…

[5] Before me today Mr Pidgeon endeavoured to argue that the appeal with respect to this costs and disbursements award on the adjournment of the August 2014 hearing was still a live issue.

[6] With respect however, in my view this is drawing a rather long bow.

[7] This is because on 22 July 2015 the appellant/applicant filed in this Court an interlocutory application on notice for:

(a) Special leave to extend time for filing an appeal against the costs decision of Judge Crosbie (that costs decision being given on
8 December 2014); and

(b)A stay on the post-appeal hearing judgment sum pending the resolution of the application for orders under the Companies Act 1993 s 174 (pursuant to High Court Rules 20.19(1)(c)).

[8] With respect to that 22 July 2015 application, at the outset today I indicated that the application for stay noted in (b) above which was opposed by the respondent but who, according to Mr Till QC, had had no real opportunity to file a formal notice of opposition and material in support, was simply adjourned and would be the subject of a hearing in the future to be set by the Registrar.

[9] So far as the application for special leave to extend the time for filing the appeal against the costs…

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 Shafik v Makary

Details

AGLC: Shafik v Makary [2015] NZHC 1764
Case: [2015] NZHC 1764
Decision Date: 29 July 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Shafik v Makary was heard, concerning an appeal against a summary judgment decision rendered by Judge Crosbie in the District Court. The appellant, Shef Shafik, was appealing the decision, which awarded costs and disbursements to the respondent, Nagy Albert Makary. The appeal was initially set down for hearing, but on the day, it was indicated that the substantive appeal against the summary judgment decision was to be abandoned, leaving only a challenge to the costs and disbursements awarded. The appellant argued that the costs award was unreasonable and erroneous on point of law, however, the Court found that the appeal was unlikely to succeed on the merits.

The court considered several factors in deciding whether to grant special leave to appeal the costs decision, including the length of the delay in seeking leave, the parties' conduct, the extent of prejudice caused by the delay, the prospective merits of the appeal, and whether the appeal raised any issue of public importance. The court found that the delay in seeking leave to appeal was lengthy and the reasons for the delay were not particularly compelling. The court also found that the respondent had been prejudiced by the delay, as they had been out of their money for some time. Regarding the prospective merits of the appeal, the court found that the appeal was unlikely to succeed on the merits, as the appellant's defence was wholly unmeritorious and amounted to an unreasonable pursuit of issues. The court also found that the appeal did not raise any issue of public importance.

As a result, the court ruled that the appellant's application for special leave to extend time for filing the appeal against the costs decision of Judge Crosbie must fail. The court also awarded costs to the respondent on a category 2B basis together with a 50% uplift, as approved by the Registrar, and disbursements to the respondent, which included reasonable travel and accommodation costs for Mr Till QC, counsel appearing for the respondent.

Orders