Skelton v Howcroft

Case [2018] NZCA 140


IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA22/2018
 [2018] NZCA 140

BETWEEN

BEVIN HALL SKELTON
Applicant

AND

CHARLES MICHAEL HOWCROFT
First Respondent

DARAN NAIR
Second Respondent

CHARLES HENRY BIRD
Third Respondent

Hearing:

30 April 2018

Court:

French, Cooper and Winkelmann JJ

Counsel:

Applicant in Person
B M Cunningham for First and Second Respondents

Judgment:

7 May 2018 at 3 pm

JUDGMENT OF THE COURT

AThe application for special leave is treated as an application for extension of time to appeal.

BThe application for extension of time to appeal is declined.

CThe applicant must pay the first respondent costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

  1. Mr Skelton applies for special leave to appeal against judgments of Davison J dated 30 May 2017,[1] 4 October 2017[2] and 29 November 2017.[3]  In those judgments Davison J ordered that Mr Skelton pay security for costs on his application seeking pre-commencement discovery from the first and second respondents Messrs Howcroft and Nair (May judgment), declined Mr Skelton’s application to extend time to apply to rescind the May judgment (October judgment) and, finally, declined Mr Skelton leave to appeal the October judgment (November judgment). 

  2. Mr Skelton’s application for special leave was brought on the basis that each of the judgments related to an interlocutory application so that, pursuant to the Senior Courts Act 2016, leave to appeal the decision was required.[4]  Under the Senior Courts Act, leave is required to appeal a judgment determining an interlocutory application.[5]  The Senior Courts Act came into force on 1 March 2017 but Mr Skelton’s application for pre-commencement discovery was filed in the High Court prior to that date. [6]  The Senior Courts Act’s statutory predecessor, the Judicature Act 1908, allowed appeals against such decisions as of right.[7]  Because the application for pre‑commencement discovery was filed in the High Court prior to 1 March 2017, counsel were asked to address at the hearing of the application for special leave whether, in light of the transitional provisions contained in the Senior Courts Act and its Schedules, the proposed appeal was governed by the provisions of the Senior Courts Act, or rather by the Judicature Act.

    [4]Mr Skelton had in fact brought an application in the High Court seeking leave to appeal to the Court of Appeal again on the assumption that the Senior Courts Act required leave.  That application was declined, and accordingly, if the Senior Courts Act was applied, then Mr Skelton would require special leave of this Court for the bringing of the appeal.

    [5]Senior Courts Act 2016, s 56.

    [6]Senior Courts Act, s 2.

    [7]Judicature Act 1908, s 66.

  3. At the hearing of the application for special leave Mr Skelton argued that, contrary to what had been assumed to be the position…

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Skelton v Howcroft [2018] NZCA 140
Case
[2018] NZCA 140
Decision Date

CaseChat Overview and Summary

Skelton v Howcroft is a case heard by the Court of Appeal of New Zealand where the applicant, Bevin Hall Skelton, sought special leave to appeal against judgments of Davison J dated 30 May 2017, 4 October 2017 and 29 November 2017. The first and second respondents are Charles Michael Howcroft and Daran Nair, while the third respondent is Charles Henry Bird. The legal issues that arose in this case were whether the proposed appeal was governed by the provisions of the Judicature Act or by the provisions of the Senior Courts Act and whether leave or extension of time should be granted.

The Court concluded that the provisions of the Judicature Act continued to regulate the right to appeal the judgments, and that the November judgment determined a procedurally misconceived application, since leave to appeal the May and October judgments was not required. The Court then treated the application for special leave as an application to extend time to appeal the judgments. The Court held that the proposed appeal was manifestly without merit and that the delay in filing the appeal was substantial. The applicant sought an indulgence of the Court to pursue his appeal, but the Court was satisfied that the proposed appeal being manifestly without merit, the extension of time to appeal should not be granted.

The final orders of the Court were that the application for special leave is treated as an application for extension of time to appeal. The application for extension of time to appeal is declined. The applicant must pay the first respondent costs for a standard application on a band A basis and usual disbursements.

Orders

Orders of the court

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Background

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Decision

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