IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-001897 [2015] NZHC 2214
UNDER the Trustee Act 1956 AND
the Partnership Act 1908
IN THE MATTER
of a claim to set aside an agreement and for damages
BETWEEN
BEVIN H SKELTON Plaintiff
AND
CHARLES M HOWCROFT Defendant
Hearing: 8 September 2015 Appearances:
B H Skelton (Self-represented Plaintiff) in Person
B M Cunningham for the DefendantJudgment:
14 September 2015
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 14 September 2015 at 4.45 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: B M Cunningham, Auckland
Solicitors: BSA Law, Auckland
Copy To: B H Skelton, Auckland
SKELTON v HOWCROFT [2015] NZHC 2214 [14 September 2015]
Introduction
[1] Mr Skelton seeks an extension of time to bring a review of a decision of an
Associate Judge striking out his claim.1
[2] Mr Skelton is out of time because he mistakenly attempted to file an appeal in the Court of Appeal rather than seeking a review of an Associate Judge’s decision made in Chambers.
Applicable law
[3] Rule 2.3(2) of the Rules provides:
(2) Unless a Judge or an Associate Judge directs otherwise, notice of the application must be filed and served,—
(a) if it is made by a party who was present or represented when the order was made or the decision was given, within 5 working days of the order being made or the decision being given; or
(b) if it is made by a party who was not present or represented, within 5 working days after the receipt by that party of notice of the making of the order or the giving of the decision.
[4] The factors that are relevant to the exercise of the discretion to extend time to review an Associate Judge’s decision are no different to those that are applicable to an application to extend time to appeal.2 Relevant factors include:3
(a) the length of the delay; (b) the reasons for the delay;
(c) the conduct of the parties;
1 Skelton v Howcroft [2015] NZHC 1313.
2 Sutton v New Zealand Guardian Trust Co Ltd (1989) 2 PRNZ 111 (HC) at 113.
3 Hsu v Moor Stephens Markhams Ltd [2014] NZHC 961 at [12]; Hansen v Bird HC Whangarei
CIV-2004-488-519, 15 February 2007 at [38]; Junken Nissho Ltd v Attorney General (1998) 12
PRNZ 380 (HC).
(d) the prospective merits of the claim; and
(e) the risk of prejudice to the defendant.
[5] The overall test is whether the extension of time would meet the overall interests of justice.4 The parties’ submissions were directed to the factors in (a), (b), (d) and (e) above and each of those factors is considered below.
The strike-out decision
[6] Mr Skelton’s first cause of action was for alleged breach of duties by Mr Howcroft arising out of a loan contract executed by Mr Howcroft in his capacity as trustee of the Bevin Skelton Children’s Trust. Mr…
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- Skelton v Howcroft [2015] NZHC 2214
- Case
- [2015] NZHC 2214
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CaseChat Overview and Summary
The court granted Skelton's application for leave extending the time for filing an application for review, but declined to make an order for costs in Skelton's favour. The decision was based on the fact that Skelton had received an indulgence from the court and the delay in filing the review application was reasonably explained. The merits of the review application were considered weak, but the court decided that the overall justice in the case favoured the grant of leave to Skelton to bring a review of the Associate Judge's decision out of time.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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