Sher Khan v Keith Reid

IN THE SUPREME COURT OF NEW ZEALAND

SC 21/2011
[2011] NZSC 58

BETWEEN SHER AFZAL KHAN
Applicant

AND KEITH WILLIAM REID
Respondent

Court: Elias CJ, Blanchard and Tipping JJ

Counsel: Applicant in person
M R T Colthart for Respondent

Judgment: 1 June 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed with costs of $2,500 to the Respondent.

REASONS

The applicant, Mr Khan, together with his wife sued the respondent, Mr Reid, a barrister who had previously acted for Mrs Khan. That claim, alleging negligence on the part of the respondent, was struck out as time barred in the High Court.[1] The Khans then sought leave to appeal out of time to the Court of Appeal, which concluded that the appeal was unmeritorious and refused leave.[2]
[1] Khan v Reid HC Auckland CIV-2009-404-1721, 30 October 2009.
[2] Khan v Reid [2010] NZCA 391.
Mr Khan had not paid Mr Reid costs ordered by the High Court. Mr Reid had served a bankruptcy notice. Mr Khan applied to set it aside but did not comply with the time period for filing his affidavit in support. His application was therefore struck out.[3]
[3] Reid v Khan HC Auckland CIV-2009-404-8543, 11 March 2010.
Mr Khan appealed against that striking out but again his appeal was not pursued within the applicable time limit (in r 43 of the Court of Appeal (Civil) Rules 2005). He therefore needed an extension of time which the Court of Appeal has refused to give him.[4] The Court of Appeal considered that the appeal was pointless in view of the adjudication, which was unchallenged, and that the matters which Mr Khan wished to raise had been conclusively resolved against him.
[4] Khan v Reid [2011] NZCA 22.
The present application is a hopeless attempt to raise those matters once again. It does not meet the criteria for leave.

Solicitors:
C K Lyon, Remuera for Respondent

CaseChat Overview and Summary

Sher Afzal Khan, the applicant, applied to the Supreme Court of New Zealand for leave to appeal against the Court of Appeal's refusal to grant him leave to appeal out of time against the High Court's decision to strike out his claim for negligence against Keith William Reid, the respondent. The Court of Appeal had previously concluded that the appeal was unmeritorious and refused leave. The applicant had not paid costs ordered by the High Court, leading to the respondent serving a bankruptcy notice. The applicant's application to set it aside was struck out due to non-compliance with the time period for filing an affidavit. The applicant then appealed against the striking out, but his appeal was not pursued within the applicable time limit, leading to the Court of Appeal refusing to grant him an extension of time.

The legal issues before the Supreme Court were whether the applicant's application for leave to appeal met the criteria for leave and whether the Court of Appeal's decision was correct. The Court of Appeal had concluded that the appeal was pointless in view of the adjudication, which was unchallenged, and that the matters which the applicant wished to raise had been conclusively resolved against him. The present application was a hopeless attempt to raise those matters once again. The Court found that the applicant's application did not meet the criteria for leave.

The Supreme Court dismissed the applicant's application for leave to appeal with costs of $2,500 to the respondent. The Court found that the Court of Appeal's decision was correct and that the applicant's application was hopeless. The matters which the applicant wished to raise had been conclusively resolved against him, and the present application was an attempt to raise them once again. The Court found that the applicant's application did not meet the criteria for leave.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established