Smith v Paros Property Trusts Limited

[2021] NZCA 675

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA562/2021
 [2021] NZCA 675

BETWEEN	TIMOTHY ERIC BRUCE SMITH Appellant
AND	PAROS PROPERTY TRUST LIMITED Respondent

Court:	Brown and Gilbert JJ
Counsel:	Appellant in Person L McEntegart and A J Steel for Respondent
Judgment: (On the papers)	13 December 2021 at 10.30 am

JUDGMENT OF THE COURT

An extension of time is granted until 11 February 2022 for the filing of the case on appeal.

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REASONS OF THE COURT

(Given by Brown J)

1. On 13 September 2021 Mr Smith filed a notice of appeal against a judgment of Harland J dated 19 August 2021 in favour of the respondent.[1]  Although Mr Smith has paid security for costs, he has yet to file the case on appeal.  The three-month period for doing so expires on 13 December 2021. 

   [1]Paros Property Trust Ltd v Smith [2021] NZHC 2163.

2. Mr Smith has filed an application for an extension of time to “March 2022” to file the case on appeal.  His application explains:

   2.Mr Smith who resides in Auckland received the judgement during level 4 lockdown and does not have the resources in the form of electronic software, photocopiers and binding facilities available directly to him to complete the requirements for the making of the case on appeal.

   3.Such businesses that could assist Mr Smith to fulfil the requirements to make the case on appeal for this appeal, have remained closed to the public from the date of the delivery of the judgement on the 19^th of August 2021 not allowing Mr Smith a proper opportunity to fulfil the requirements for the making of the case on appeal.

   4.Further Mr Smith[’s] has been denied access to funds to assist his appeal.  Mr Smith’s ex-wife is denying access to funds and withholding agreement for Mr Smith to access his share of marital funds, in order that Mr Smith’s share of funds are held in trust to indemnify Ms Shaw in relation to the lease that is the subject of this appeal.  This has further [has] restricted the ability of Mr Smith to make the case on appeal.

3. In a memorandum dated 6 December 2021 the respondent states that Mr Smith’s assertions regarding his inability to progress preparation of the case on appeal are not accepted.  Neither party has filed submissions in relation to the application.

4. As this Court explained in Yarrow v Westpac New Zealand Limited[2] the decision of the Supreme Court in Almond v Read[3] establishes that any consideration of the merits of an appeal must be superficial pre-hearing, absent exceptional delay or similar disentitling circumstance, and that appeals as of right ought ordinarily be heard by this Court.  Yarrow noted that, while Almond v Read concerned r 29A, not r 43, the principles it outlines apply to any interlocutory application for an extension of time where there is an appeal as of right.[4]

   [2]Yarrow v Westpac New Zealand Limited [2018] NZCA 601.

   [3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39].

   [4]Kipping v Sharrock [2018] NZCA 289 at [12].

5. The delay here is not exceptional.  Reasons have been advanced for the failure to lodge the case on appeal within the prescribed period.  Furthermore, the requirement to pay security for costs has been duly complied with.  In the circumstances we consider that an extension of time is justified, albeit not of the duration sought by Mr Smith. 

6. We grant an extension of time to 11 February 2022 for the filing of the case on appeal.  We see no reason why the case on appeal cannot be completed and filed within that period.  We consider that there is little if any prejudice for the respondent in granting an extension of that duration at this time.  The alternative course would be to allocate the application to a Miscellaneous Motions hearing date.  The first available date is 28 February 2022.

Result

1. An extension of time is granted until 11 February 2022 for the filing of the case on appeal.

Solicitors:
Brown Partners, Auckland for Respondent