Sharma v De Luen HC Auckland CIV 4733/04

[2005] NZHC 1307

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 4733/04

BETWEEN

DEO DATT SHARMA

Plaintiff

AND

SHONA DE LUEN

First Defendant

AND

GRAEME ASKELUND

Second Defendant

AND

ATTORNEY GENERAL

Third Defendant

Hearing:

16 March 2005

Appearances: D Sharma in person

P Wright for Second Defendant Judgment:     18 March 2005

JUDGMENT OF SIMON FRANCE J

This judgment was delivered by Justice Simon France on 18 March 2005 at 2:00 p.m. pursuant to r540(4) of the High Court Rules 1985.

Applicant:

D D Sharma, 1/97 McLeod Road, Te Atatu South, Auckland 1008 Counsel:

P Wright, PO Box 4338, Auckland Solicitors:

Crown Law Office, PO Box 5012, Wellington

SHARMA V DE LUEN HC AK CIV 4733/04 [18 March 2005]

[1]    This is an application by Mr Sharma pursuant to r 704(3) for special leave of the Court to extend the time prescribed for appealing. Special leave is required because although Mr Sharma filed an appeal document in this Court, a copy was not lodged in the District Court or served on the Defendant. The former occurred one working day later, the latter three working days later.

[2]    Mr Sharma wishes to appeal a strike out of his claim against the Second Defendant in the District Court. The general circumstances were covered in an earlier judgment of Allan J on 3 December. I do not repeat the material contained in that ruling.

[3]    In brief, the situation is that in the course of matrimonial property proceedings, a safe that was situated at the house of Mr Sharma’s former wife was opened. The safe was seemingly opened by a locksmith.  Present at the opening  were the solicitor for Mr Sharma’s wife – this solicitor is the First Defendant – and the Second Defendant, who had accepted an appointment in the proceedings as amicus curiae.

[4]    The District Court proceedings filed by Mr Sharma are, as the learned District Court Judge noted, somewhat lacking in any precision. A proper cause of action is not properly identified. However, it is reasonably clear that trespass to goods is alleged on the part of the first two Defendants. The allegation against the Second Defendant is that he assisted or directed the opening. The pleadings allege that at some point in time the Second Defendant told the Plaintiff that he, the Second Defendant, had “told the First Defendant to break open the safe as it was relationship property”.

[5]    The Second Defendant applied in the District Court for the proceedings against him to be struck out. This occurred and it is this judgment that Mr Sharma seeks to appeal.

[6]    At paragraph 12 of the relevant District Court judgment, the learned Judge observes:

“It is alleged that he told the First Defendant (the Respondent’s solicitor) to open the safe. This is denied, but even if it could be proven, Mr Askelund could not possibly be held liable to Dr Sharma on this ground.”

[7]    The Judge in the following paragraphs then sets out his reasoning why this situation could not produce any liability. The decision appears to accept the proposition that it is possible to assume that any direction given by the Second Defendant would have been ineffective on the First Defendant. In other words it is assumed that the First Defendant knew what she was doing, knew the limits of the Second Defendant’s role, and would not have been influenced by any directions from him. Mr Sharma wishes on appeal to dispute the correctness of approaching  the strike out in that way.

[8]    I consider that at this preliminary stage Mr Sharma should have the opportunity to argue on appeal that this approach was incorrect. The only real prejudice alleged by the Second Respondent was that a grant of special leave to appeal out of time would prolong matters in a case where it was plain that the appeal would fail.

[9]    I accept that this is a relevant factor to the exercise of my discretion. However, I am not at this stage satisfied that the appeal is unarguable to an extent that it should lead me to deny leave to appeal out of time. In this ruling I have focussed almost extensively on this single issue. That is because the factual circumstances that lead to Mr Sharma needing special leave are not ones which would otherwise cause me to deny special leave. A core appeal document was filed in time; other aspects of the procedure were inadequate. However they were remedied in a manner that avoided any prejudice to anyone but which did not, of course, overcome the technical deficiency.

[10]   I make no order as to costs. That matter can be considered in the context of the appeal hearing.

Simon France J