Stewart v Eversons International Limited (in liquidation) - [2024] NZCA 104

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA536/2023
[2024] NZCA 104

BETWEEN	EVAN KERRY STEWART Applicant
AND	EVERSONS INTERNATIONAL LIMITED (IN LIQUIDATION) First Respondent
AND	ELIZABETH HELEN KEENE AND LUKE NORMAN Second Respondents

Court:	Gilbert and Wylie JJ
Counsel:	Applicant in person P C Murray for First and Second Respondents
Judgment: (On the papers)	11 April 2024 at 2.30 pm

JUDGMENT OF THE COURT

AThis Court has jurisdiction to hear the applicant’s appeal.
B    An extension of time for filing the notice of appeal is granted.
C    An extension of time is granted for filing the case on appeal and for applying for a hearing date, until 17 May 2024.
D    Security for costs on the appeal is to be set pursuant to r 35 of the Court of Appeal (Civil) Rules 2005 and is to be paid on or before 3 May 2024.
E    There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

The applicant, Evan Stewart, seeks an extension of time to appeal a judgment given by Churchman J in August 2023, dismissing an application made by Mr Stewart under r 15.16(5) of the High Court Rules 2016 (the HC Rules).[1]
[1]Eversons International Ltd (in liq) v Stewart [2023] NZHC 2325 [judgment of Churchman J].
There are two issues raised by the application — whether Mr Stewart can appeal as of right against Churchman J’s judgment and, if so, whether Mr Stewart should be granted an extension of time to do so.
Mr Stewart is self-represented. He says, first, that he can appeal to this Court against Churchman J’s judgment as of right without first obtaining the leave of the High Court because the judgment was not given on an interlocutory application, and secondly, that he should be granted an extension of time to bring the appeal.
The respondents oppose the application. They say that what was before Churchman J was an interlocutory application, that an appeal can therefore only proceed with leave and that leave has neither been sought nor granted. Further they say that, in any event, no extension of time should be granted.

Background

To understand the issues before us, it is necessary to set out the background in some detail.[2]

Mr Stewart/the company

[2]The summary which follows is taken from the judgment of Churchman J, above n 1; Eversons International Ltd (in liq) v Stewart [2020] NZHC 3188 [judgment of Associate Judge Paulsen]; and Eversons International Ltd (in liq) v Stewart [2022] NZHC 3616 [judgment of Nation J].

Mr Stewart was the sole shareholder and director of the first respondent, Eversons International Ltd (Eversons). It imported and sold synthetic “legal high” products. Its business was very profitable until the law was changed in May 2014 to ban the sale of such products. The business was lost and Mr Stewart placed the company into liquidation in April 2018 by a special resolution as shareholder, following a demand by the…

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: [2024] NZCA 104
Decision Date: 11 April 2024 at 2.30 pm

CaseChat Overview and Summary

Evan Stewart appeals against a decision of the High Court in Christchurch dismissing his application under r 15.16(5) of the High Court Rules 2016 (HC Rules) to set aside a judgment entered by Nation J on 22 December 2022. The judgment was entered on an admission signed by Mr Stewart, which he had agreed to as part of a settlement of claims between him and liquidators of Eversons International Ltd (Eversons). The liquidators are the first respondents in the appeal. The second respondents are two of the three liquidators, Elizabeth Helen Keene and Luke Norman. The appeal raises two issues. The first is whether Mr Stewart is entitled to appeal to this Court as of right. The second is whether an extension of time to file the notice of appeal should be granted. The Court found that the effect of the judgment declining to set aside Nation J's judgment or to direct Mr Stewart to bring a proceeding to determine whether the judgment was wrongly entered, brings proceeding CIV-2020-409-192 to an end. The judgment entered by Nation J could be enforced against Mr Stewart and he would have no ability to challenge the same. The Court concluded that Mr Stewart has an appeal as of right under s 56(4) of the Senior Courts Act 2016. The Court also found that an extension of time for filing the notice of appeal should be granted. The Court noted that the delay in serving the notice of appeal was short — 16 working days. The Court accepted that the issues raised by the proposed appeal are significant to Mr Stewart and does not consider that it can be said to be clearly hopeless. The Court held that the interests of justice require that an extension of time be granted.

Orders