Skelton v Howcroft - [2015] NZHC 2214

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 Defendant

Judgment:

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…

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 [2015] NZHC 2214
Case: [2015] NZHC 2214
Decision Date: 14 September 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Skelton sought to set aside an agreement and claim damages against Howcroft. The legal issues the court had to decide included whether Skelton's application for leave to extend the time for filing an application for review was within the required time limit, and if the merits of the review application were strong enough to warrant the extension of time. The court found that Skelton's application for leave was reasonably explained due to his mistake in filing an appeal instead of an application for review, and the delay in filing the review application was also justified as Skelton was preparing another application for leave to appeal against another decision. 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.

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