Skiffington v Wellington Tenths Trust
[2018] NZCA 462
•24 October 2018 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA386/2018 [2018] NZCA 462 |
| BETWEEN | HAYDEN JAMES HARLEY SKIFFINGTON AS EXECUTOR FOR THE ESTATE OF LORRAINE JOYCE SKIFFINGTON |
| AND | WELLINGTON TENTHS TRUST |
| Court: | Asher and Brown JJ |
Counsel: | D J S Parker and M W G Riordan for First Applicant |
Judgment: | 24 October 2018 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 is granted.
BThe respondent must pay the first applicant costs for a standard application on a band A basis and usual disbursements.
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REASONS OF THE COURT
(Given by Brown J)
Introduction
Mr Skiffington (the first applicant) seeks an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) to 16 July 2018[1] within which to appeal against the judgment of the High Court delivered on 31 May 2018.[2] The Wellington Tenths Trust (the respondent) opposes his application.
The circumstances leading to the application
[1]The notice of appeal was filed on 16 July 2018.
[2]Wellington Tenths Trust v Skiffington [2018] NZHC 1261.
The respondent’s summary judgment application against the late Ms Lorraine Skiffington was argued on 19 July 2017. At the time of the hearing it was known that Ms Skiffington was seriously ill. She died on 2 September 2017.
The High Court judgment, delivered on 31 May 2018, held among other things that the respondent was entitled to summary judgment on liability on its claim that Ms Skiffington had dishonestly assisted Dr Ralph Love to breach a fiduciary obligation owed by him to the trustees of the respondent.[3]
[3]At [151(1)].
However in order to allow for an application to be made to substitute the administrator of Ms Skiffington’s estate as the first defendant, Associate Judge Smith deferred the date for formal entry of judgment, stating:
[5] The law provides that Tenths’ claim against Ms Skiffington may continue against the administrator of her estate after her death, but no application has yet been made to substitute the administrator of Ms Skiffington’s estate as first defendant in the proceeding. As the matter was fully argued before Ms Skiffington’s death, I propose to give my decision on both applications, but will refrain from entering judgment on the summary judgment application to allow either party to make an appropriate application to substitute the administrator of Ms Skiffington’s estate as first defendant. Judgment can be entered in accordance with my decision on the summary judgment application as and when the administrator is substituted.
(Footnotes omitted.)
On 18 June 2018 Churchman J made the following orders:[4]
(a)substituting Hayden James Harley Skiffington of Hamilton, Student, in his capacity as administrator of the estate of Lorraine Joyce Skiffington (deceased) as first defendant in these proceedings; and
(b)that the proceedings be carried on between the continuing parties and the new party.
[4]Wellington Tenths Trust v Skiffington HC Wellington CIV-2017-485-180, 18 June 2018 (Minute of Churchman J) at [7].
The sealed order for summary judgment was served on counsel for the first applicant on 26 June 2018.
While Mr Skiffington considered that the time for filing an appeal from the judgment might not begin to run until 18 June 2018, the present application was filed on 10 July 2018 seeking an extension of time for the filing of an appeal.
Hence there are two issues for determination:
(a)By what date was an appeal required to be filed against the judgment?
(b)If an extension of time to file an appeal is required, should it be granted?
The time for filing an appeal
Rule 29 of the Rules relevantly provides:
29 Time for appeal
(1) A party must bring an appeal,—
(a)in the case of an appeal to the Court as of right, within 20 working days after the date of the decision against which the party wishes to appeal;
…
(3)For the purposes of subclause (1), the date of the decision is the date on which the decision is given,—
(a)whether reasons for the decision are then given or are given later; or
(b)whether or not formal steps, such as entering or sealing the decision, are necessary or are taken after the decision is given.
This Court previously considered the rule in Ronayne v Coombes where Wild J stated:[5]
[2] The fact that Faire J did not formally enter judgment until 24 June 2015 resulted in disagreement between counsel as to whether this appeal was filed in time. We are clear that it was not. Pursuant to r 11.5 of the High Court Rules, the Judge gave his decision on 29 May 2015, and that is the operative date in terms of r 29(3)(b) of the Court of Appeal (Civil) Rules 2005. …
[5]Ronayne v Coombes [2016] NZCA 393, [2016] NZFLR 672.
However Mr Parker submits for the first applicant that the present case is a novel situation and that Ronayne is distinguishable because there:
(a)the time for payment of a judgment sum was reserved for further submissions;
(b)there was no statement by the Court that entry of judgment would be delayed until after a specified event occurred; and
(c)the parties specifically requested a final determination from the Court on the substantive matters so that they could agree on the time for payment.
He submits that the delay in entry of judgment contemplated by Associate Judge Smith was necessitated by the death of Ms Skiffington and the fact that there had been no application to substitute the estate.
We accept that the purpose of Associate Judge Smith’s direction at [5][6] appears to have been to prevent the judgment having any effect against the first applicant until he was substituted as a party to the proceedings. However as r 29(3) explicitly states, the date of the decision is the date on which it is given, whether or not formal steps are taken subsequently. It follows that the 20 working day period in r 29(1)(a) ran from 31 May 2018 and the last day for filing an appeal was 29 June 2018. Hence an application for an extension of time under r 29A was required.
Should an extension of time to appeal be granted?
[6]Set out above at 4.
The relevant principles were recently explained by the Supreme Court in Almond v Read:[7]
[37] Accordingly, where a litigant takes steps to exercise the right of appeal within the required timeframe (including advising the other party), but misses the specified time limit by a day or so as a result of an error or miscalculation (especially by a legal adviser) and applies for an extension of time promptly on learning of the error, we do not think it is appropriate to characterise the giving of an extension of time as the granting of an indulgence which necessarily entitles the court to look closely at the merits of the proposed appeal. In reality, there has simply been a minor slip-up in the exercise of a right. An application for an extension of time in such a case should generally be dealt with on that basis, with the result that an extension of time should generally be granted, desirably without opposition from the respondent.
[7]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
The Court stated that the ultimate question when considering the exercise of the discretion to extend time under r 29A is what the interests of justice require.[8] That necessitates an assessment of the particular circumstances of the case. Factors identified as likely to require consideration included:[9]
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
The Court reiterated that the merits will not generally be relevant in a case where there has been an insignificant delay as a result of a legal adviser’s error and the proposed respondents have suffered no prejudice beyond the fact of an appeal.[10]
[8]At [38].
[9]At [38].
[10]At [39(b)].
The delay in filing the application was six working days. The respondent contends that delay was not minimal. However we consider it was a short delay and less than other periods of delay which have been excused in other applications, for example Edel Metals Group Ltd v Geier Ltd.[11]
[11]Edel Metals Group Ltd v Geier Ltd [2017] NZCA 359.
The respondent also submits that the delay is unexplained with no reasons given why additional time was necessary. However the explanation advanced was inadvertence on account of an error as to the correct date for filing an appeal as manifest from the first issue traversed above.
The primary ground of opposition is that the intended appeal lacks merit. For the respondent it is argued that the intended appeal requires a construction of s 47(1) of the Evidence Act 2006 which denies the section’s applicability to the findings made by Lang J in the trial of Dr Love. It is submitted that this presents a legally untenable argument and amounts to a collateral attack on the criminal trial findings which may be an abuse of process.
The rejoinder for Mr Skiffington is that a party to a civil proceeding can only be bound by findings of fact in criminal proceedings to the extent that those findings are implicit in the offences.[12] The submission is made that Mr Skiffington has a strong case that the Associate Judge relied on findings of fact from criminal proceedings beyond those that were implicit in the offences for which Dr Love was found guilty. With reference to the denial of dishonest assistance it is further submitted that the findings of dishonesty against Ms Skiffington’s advisers support rather than undermine her evidence that she was misled by those persons.
[12]Citing Commissioner of Police v Filer [2013] NZHC 3111 at [25].
On the issue of the relevance of the merits of a proposed appeal the Supreme Court in Almond v Read said:[13]
Accordingly, a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. An appeal would be hopeless, for example, where, on facts to which there is no challenge, it could not possibly succeed, where the court lacks jurisdiction, where there is an abuse of process (such as a collateral attack on issues finally determined in other proceedings) or where the appeal is frivolous or vexatious. The lack of merit must be readily apparent. The power to grant or refuse an extension of time should not be used as a mechanism to dismiss apparently weak appeals summarily.
[13]Almond v Read, above n 7, at [39(c)].
Consideration of the merits of an appeal in the context of an application to extend time must necessarily be relatively superficial.[14] Furthermore any assessment of the merits must take place against the background of the Supreme Court’s description of the nature of a general appeal in Austin, Nichols.[15] On the basis of the submissions we have considered it is not apparent to us that the proposed appeal falls within the hopeless category envisaged by the Supreme Court.
[14]At [39(c)].
[15]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
The respondent emphasises that it and other creditors of Ms Skiffington’s estate will be prejudiced because the assets of the estate, which are said to be already insufficient, will be further depleted by an unmeritorious appeal. However such prejudice arises not from the delay in bringing the appeal but as a consequence of the appeal itself. That is not prejudice in the sense envisaged by Almond v Read.
Consequently in our view the relevant factors weigh in favour of the grant of an extension of time to bring the appeal.
Result
The application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 is granted.
The respondent must pay the first applicant costs for a standard application on a band A basis and usual disbursements.
Solicitors:
Parker & Associates, Wellington for First Applicant
Gibson Sheat, Wellington for Respondent
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