Shoye Venture Limited v Wilson - [2016] NZCA 523

IN THE COURT OF APPEAL OF NEW ZEALAND

CA388/2016
[2016] NZCA 523

BETWEEN	SHOYE VENTURE LIMITED Applicant
AND	DONALD GORDON WILSON Respondent

Hearing:	31 October 2016
Court:	Randerson, Cooper and Winkelmann JJ
Counsel:	P R Rzepecky for Applicant A E Hansen for Respondent
Judgment:	3 November 2016 at 2:30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is declined.
B The applicant must pay costs to the respondent as for an application for leave to appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The applicant (SVL) applies for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) to appeal against a decision given by Fogarty J on 29 April 2015.[1] In that decision, Fogarty J dismissed a claim against the respondent, Mr Wilson, under a guarantee dated 10 September 2007.
[1]Shoye Venture Ltd v Wilson [2015] NZHC 319.
The application is required because although an appeal to this Court was filed in time, it was deemed to be abandoned on 27 August 2015 under r 43 of the Rules. After an appeal is deemed to be abandoned, there is a three-month window under r 43(3) in which an extension of time may be sought. That period expired on 26 November 2015. It was not until 5 August 2016 that the present application for an extension of time under r 29A was filed.
The brief background is that the Manukau Golf Club (MGC) owned gambling machines installed in SVL’s Trophy Bar under a venue agreement dated 10 September 2007 between MGC and SVL. On the same date, an employee of MGC, Ms Mara, entered into a management agreement with SVL naming her as the venue manager. Mr Wilson, a member of MGC, guaranteed the performance of Ms Mara’s obligations under the management agreement.
In terms of the Gambling Act 2003, the Department of Internal Affairs must approve a venue agreement of the kind at issue. When the Department did not approve the venue agreement, a second such agreement was entered into on 9 October 2007 between MGC and SVL. Under the second venue agreement, SVL’s director, Mr Joyce, was named as the venue manager. But Ms Mara undertook most of the responsibilities SVL was to perform as the venue manager. This arrangement was illegal under the Gambling Act because of Ms Mara’s close links with MGC. The Judge said this conflicted with the policy of the Gambling Act to separate management from the beneficiaries of the business.[2]
[2]At [31], and see Shoye Venture Ltd v Wilson [2013] NZHC 658.
In 2009, SVL terminated the management agreement. This had the effect of triggering a provision in that agreement requiring her to purchase the Trophy Bar business from SVL for the sum of $300,000 plus GST (if any). Ms Mara failed to comply with that obligation. SVL then sought to recover that sum (together with…

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.

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Details

Case: [2016] NZCA 523
Decision Date: 3 November 2016 at 2:30 pm

CaseChat Overview and Summary

Shoye Venture Limited (SVL) sought an extension of time to appeal a decision by Fogarty J dismissing a claim against Donald Gordon Wilson under a guarantee agreement. The Court of Appeal considered whether the applicant had provided sufficient justification for the delay in applying for an extension of time and whether the appeal had arguable grounds. The Court found that the delay was substantial and not adequately explained, and the prospects of a successful appeal were weak. As a result, the Court declined the application for an extension of time and ordered the applicant to pay costs to the respondent.

The legal issues before the Court were whether the application for an extension of time should be granted under r 29A of the Court of Appeal (Civil) Rules 2005 and whether the appeal had arguable grounds. The Court considered the length of the delay, the reasons for the delay, the parties' conduct, the extent of prejudice caused by the delay, the prospective merits of the appeal, and whether the appeal raises any issue of public importance. The Court found that the delay was not adequately explained and the prospects of a successful appeal were weak. Therefore, the Court declined the application for an extension of time.

The Court found that the delay in filing the application for an extension of time was substantial and not adequately explained. The Court was not persuaded by the applicant's counsel's explanation for the delay, which included other pressing matters and a misunderstanding of the relevant time limit. The Court noted that there are limits to the discretion available to excuse a party who is let down by its legal advisers. The Court also found that there were no arguable grounds to upset Fogarty J's judgment on the non est factum argument, which was thoroughly considered and rejected by Fogarty J. The Court concluded that the prospects of a successful appeal were weak.

The Court declined the application for an extension of time to appeal and ordered the applicant to pay costs to the respondent as for an application for leave to appeal on a band A basis and usual disbursements. The Court found that the delay in filing the application for an extension of time was substantial and not adequately explained, and the prospects of a successful appeal were weak. The Court also found that the respondent was now 72 years of age and was yet to receive payment of the costs award he obtained in the High Court. The Court concluded that it was not in the interests of justice to grant an extension of time to pursue a hopeless appeal.

Orders