Spurr v Farmlands Fuel Limited

[2014] NZCA 196

IN THE COURT OF APPEAL OF NEW ZEALAND

CA363/2013
[2014] NZCA 196

BETWEEN	STUART GRAEME SPURR Appellant
AND	FARMLANDS FUEL LIMITED Respondent

Court:

Randerson, Stevens and French JJ

Counsel:

Applicant in person
M B Couling for Respondent

Judgment:

(On the papers)

23 May 2014 at 2.30 pm

JUDGMENT OF THE COURT

The application for recall is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

1. Mr Spurr applied to this Court in November 2013 for an extension of time in which to appeal against a decision adjudicating him bankrupt.[1]  That application was dismissed.[2]  It followed an earlier summary judgment against Mr Spurr and his company, in favour of CRT Fuel Ltd (now Farmlands Fuel Ltd);[3] a hearing pursuant to an application to set aside a bankruptcy notice served on Mr Spurr;[4]  and the substantive hearing granting orders adjudicating Mr Spurr bankrupt upon CRT Fuel Ltd’s application.[5]

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

   [2]Spurr v CRT Fuel Ltd [2013] NZCA 567 (Extension of time decision).

   [3]CRT Fuel Ltd v Spurr Motors Ltd HC Timaru CIV-2012-476-9, 17 April 2012.

   [4]Spurr v CRT Fuel Ltd [2012] NZHC 3307.

   [5]CRT Fuel Ltd v Spurr,, above n 1.

2. In January 2014, Mr Spurr applied to have the decision of this Court declining his application to extend time recalled.[6]  On 4 March 2014, this application was dismissed (the first recall judgment).[7]

   [6]Above n 2.

   [7]Spurr v Farmland Fuels Ltd [2014] NZCA 48 (the first recall judgment).

3. Mr Spurr now applies to recall the first recall judgment.  In support he has filed a nine page application and a 10 page affidavit.  This material is convoluted and largely repetitive of his first recall application.  Although the second recall application seeks to recall the “first recall judgment” we propose to treat it as a further application to recall the extension of time judgment.[8]  Repetitive applications may be dealt with summarily.[9]

   [8]Applying Colman v Attorney-General [2013] NZSC 59 at [1] and Peterson v Lucas [2014] NZCA 6 at [9].

   [9]Colman v Attorney-General, above n 8, at [3].

4. In the first recall judgment this Court outlined at [3]–[5] the principles applicable to recall of judgments, as set out in Erwood v Maxted.[10]  We will not repeat those principles.  Mr Spurr must bring himself within one of the three grounds identified in Erwood in order to recall the extension of time judgment.

   [10]Erwood v Maxted [2010] NZCA 93 at [3], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

5. The grounds relied upon by Mr Spurr for the second recall application are essentially that in the initial application for an extension of time in which to appeal against his bankruptcy adjudication, and in the first recall judgment, the Court’s attention was not drawn to relevant legislative provisions and an authoritative decision of plain relevance.[11]

   [11]This seems to be an attempt to engage the first category referred to in Horowhenua  County v Nash (No 2), above n 10, at 633.

6. The legislative provisions Mr Spurr alleges the Court failed to consider are contained in subpart 2 of pt 7 of the Insolvency Act 2006.[12]   The authoritative decision of plain relevance he invokes is the same as in his first recall application, Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd.[13]  He seeks to justify his failure to direct the Court to these authorities by reference to his status as a lay litigant.

   [12]Specifically s 414(2) which confers a right of appeal to the Court of Appeal under the Act and s 417(2) which provides that the Court may extend any time limit imposed by the Act.

   [13]Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804.

7. The absence of reference to the provisions of the Insolvency Act above does not assist Mr Spurr.  Mr Spurr attempted to appeal the bankruptcy adjudication of 30 April 2013.[14]  That was a step taken pursuant to s 414 of that Act, which confers jurisdiction on appeal on this Court.  Mr Spurr contends that he was unaware of his appeal rights contained in that provision, therefore justifying a recall.  However the Court did not disallow any appeal for want of jurisdiction.  His application for leave to extend the time to appeal was heard and determined.  There was no error in failing expressly to address that provision.

   [14]CRT Fuel Ltd v Spurr, above n 1.

8. The remaining matters advanced by Mr Spurr demonstrate no good reason for departing from the first recall judgment declining a recall.[15]

   [15]The irrelevance of Redcliffe was addressed in the first recall judgment at [6]–[9]. The position has not changed. Moreover, Mr Spurr had the opportunity to provide evidence as to any alleged fraud by way of appeal, had he chosen to avail himself of that option. He did not do so.

9. For these reasons, the application for recall is dismissed.

Solicitors:
Anderson Lloyd, Dunedin for Respondent