Steinbauer v Steinbauer - [2022] NZCA 297

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA252/2022
[2022] NZCA 297

BETWEEN	MATTHEW VINCENT STEINBAUER Appellant
AND	KURT RITCHIE STEINBAUER Respondent

Counsel:	Appellant in Person A R Davie for Respondent
Judgment: (On the papers)	7 July 2022 at 10.00 am

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

AThe application for review of the Deputy Registrar’s decision is declined.
BThe appellant must pay the respondent costs in respect of an interlocutory application on a band A basis and usual disbursements.

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REASONS

On 27 May 2022 the appellant filed a notice of appeal from a judgment of Associate Judge Johnston granting the respondent summary judgment.[1] On 15 June 2022 the respondent filed a notice of appearance as required by r 33A of the Court of Appeal (Civil) Rules 2005 (the Rules). The appellant took the position that the notice of appearance had been filed out of time. Acting pursuant to r 5A(1)(c)(ii) of the Rules, the Deputy Registrar granted the respondent an extension of time of one day for the filing of the notice of appearance. His email to the parties read:
We are in receipt of the notice of appearance for the above matter filed by respondent counsel. I note this should have been filed no later than 14 June 2022, however it was not received until 15 June 2022 making it one day out of time.
However, pursuant to rule 5A(1)(c)(i) of the Court of Appeal (Civil) Rules 2005, I extend the time for respondent counsel to file a notice of appearance by one day to 15 June 2022. This delay is minimal and causes no real prejudice to the appellant.
Please note that there is a right to review my decision. Any such application must be made in writing and a decision will be made by a Judge of this Court.
[1]Steinbauer v Steinbauer [2022] NZHC 911.
On 27 June 2022 the appellant filed a request for a review of the Deputy Registrar’s decision, stating:
I highly object this approval by the Court of Appeal to allow the Respondent 11 working days to complete the Court of Appeal rule as I was denied the request for an adjournment on the 3^rd May 2022 at the Wgtn High Court by the Respondent, hence the requirement to file a Court of Appeal in my defense since no consideration for an adjournment was made and going by the rejection of an adjournment, I would of not been granted and extra day under any Court ruling if the requirements were reversed (sic).
In a memorandum of response filed on 1 July 2022, Mr Davie for the respondent first challenged the proposition that the notice of appearance was filed outside the 10 working day period specified in r 33A, drawing attention to the fact that he was served with the notice of appeal by the Court on 31 May. When allowance was made for the fact that 6 June[2] was not…

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 Steinbauer v Steinbauer

Details

AGLC: Steinbauer v Steinbauer [2022] NZCA 297
Case: [2022] NZCA 297
Decision Date: 7 July 2022 at 10.00 am

CaseChat Overview and Summary

Steinbauer v Steinbauer is an appeal from a decision of the High Court where Associate Judge Johnston granted the respondent summary judgment. The appellant, Matthew Vincent Steinbauer, sought review of the Deputy Registrar’s decision that extended the respondent’s time to file a notice of appearance by one day. The appellant argued that the respondent’s delay in filing the notice of appearance should not be tolerated, given the appellant's earlier application for an adjournment that was denied.

The primary legal issue before the Court of Appeal was whether the Deputy Registrar appropriately extended the respondent’s time to file a notice of appearance by one day, despite the notice of appearance being one day late. The appellant argued that the respondent’s delay should not be excused, while the respondent contended that the delay was minimal and caused no prejudice to the appellant. The Court of Appeal had to determine if the principles applied in Almond v Read, regarding extensions of time in the Supreme Court, should apply by analogy to the Court of Appeal rules concerning the filing of a notice of appearance.

The Court of Appeal held that the principles in Almond v Read should apply by analogy, and that in cases of minor errors or miscalculations, an application for an extension of time should ordinarily be granted. The Court concluded that the Deputy Registrar was correct in granting the respondent an extension of one day, as the delay was minimal and did not prejudice the appellant. Consequently, the application for review was dismissed, and the appellant was ordered to pay the respondent’s costs on a band A basis and usual disbursements.

Orders