Spurr v CRT Fuel Ltd - [2013] NZCA 567

IN THE COURT OF APPEAL OF NEW ZEALAND

CA363/2013
[2013] NZCA 567

BETWEEN	STUART GRAEME SPURR Applicant
AND	CRT FUEL LIMITED Respondent

Court:

Randerson, Stevens and French JJ

Counsel:

Applicant in person
M B Couling for Respondent

Judgment:

(On the papers)

21 November 2013 at 11.30 am

JUDGMENT OF THE COURT

AThe application to extend the time to appeal is dismissed.
BThe applicant must pay the respondent costs on a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

Mr Spurr applies for an extension of time[1] to appeal the decision of Associate Judge Matthews adjudicating him bankrupt.[2] The appeal is eight days out of time – Mr Spurr was adjudicated bankrupt on 30 April 2013 and his application for an extension of time was filed in this Court on 5 June 2013.[3] Both parties have consented to the application being dealt with on the papers.[4] Mr Spurr is self‑represented.

Background

[1]Pursuant to Court of Appeal (Civil) Rules 2005, r 29A.

[2]CRT Fuel Ltd v Spurr HC Timaru CIV-2012-476-237, 30 April 2013.

[3]Under r 29 of the Civil Rules Mr Spurr had 20 working days, or until 28 May 2013, to file his appeal. The time between 28 May 2013 and 5 June 2013 is eight days.

[4]As recorded in the minute of Ellen France J dated 4 October 2013.

In mid 2010 CRT Fuel Ltd and Spurr Motors Ltd entered into a retail fuel agreement. Mr Spurr personally guaranteed payment of all amounts payable to CRT Fuel under that agreement. Spurr Motors experienced trading difficulties and when its debt reached approximately $160,000 in January 2012 CRT Fuel ceased supplying fuel until the outstanding amounts were repaid.
CRT Fuel then applied to the High Court for a freezing order, which was granted on 20 January 2012. Spurr Motors was then put into liquidation by Associate Judge Matthews on 17 April 2012. At the same time, summary judgment proceedings were commenced by CRT Fuel against Spurr Motors and against Mr Spurr in reliance on the personal guarantee. Summary judgment was granted by Associate Judge Matthews and Mr Spurr was ordered to pay CRT Fuel $160,067.06.[5] No appeal was filed by Mr Spurr.
[5]CRT Fuel Ltd v Spurr Motors Ltd HC Timaru CIV-2012-476-9, 17 April 2012.
CRT Fuel then served a bankruptcy notice on Mr Spurr. The application to set aside the bankruptcy notice was heard before Associate Judge Osborne on 3 December 2012.[6] Mr Spurr claimed that the notice should be set aside pursuant to s 17(1)(d)(ii) of the Insolvency Act 2006 because he had a cross claim based on breach of contract by CRT Fuel and a breach of the Fair Trading Act 1986. The Associate Judge found that Mr Spurr did not have a cross claim which he was entitled to maintain against CRT Fuel. Accordingly, the application was dismissed. Mr Spurr was represented by counsel and no appeal was filed.
[6]Spurr v CRT Fuel…

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.

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Details

Case: [2013] NZCA 567
Decision Date: 21 November 2013 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Stuart Graeme Spurr against CRT Fuel Ltd for an extension of time to appeal the decision of Associate Judge Matthews, who adjudicated Mr Spurr bankrupt. The application was filed eight days beyond the 20 working-day limit. The appeal concerns the bankruptcy adjudication of Mr Spurr following a series of proceedings between CRT Fuel Ltd and Mr Spurr, which began with a retail fuel agreement and culminated in the bankruptcy adjudication. The central issue before the Court was whether to grant an extension of time for Mr Spurr to appeal the decision, considering factors such as the delay's length, reasons for it, the parties' conduct, the extent of prejudice caused by the delay, and the prospective merits of the appeal.

The Court found that while the delay was not extensive and could be attributed to Mr Spurr's legal inexperience, the arguments he sought to raise in support of the appeal should have been brought earlier in the proceedings. Mr Spurr had not appealed previous decisions that led to the bankruptcy adjudication, and the arguments he presented were not new. The Court concluded that it was too late for Mr Spurr to raise these arguments and that the appeal lacked merit. The Court also noted that granting the extension could cause considerable prejudice to CRT Fuel, as it would require addressing arguments that should have been raised much earlier. The Court ultimately dismissed the application for an extension of time and ordered Mr Spurr to pay CRT Fuel costs on a standard application on a band A basis and usual disbursements.

Orders