Skelton v Howcroft - [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.

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REASONS OF THE COURT

(Given by Winkelmann J)

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).
[1]Skelton v Howcroft [2017] NZHC 1149.
[2]Skelton v Howcroft [2017] NZHC 2425.
[3]Skelton v Howcroft [2017] NZHC 2941.
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.
At the hearing of the application for special leave Mr Skelton argued that, contrary to what had been assumed to be the position…

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 Skelton v Howcroft

Details

AGLC: Skelton v Howcroft [2018] NZCA 140
Case: [2018] NZCA 140
Decision Date: 7 May 2018 at 3 pm

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