Taylor v Bravo
[2021] NZCA 162
•4 May 2021 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA689/2020 [2021] NZCA 162 |
| BETWEEN | WARREN WILLIAM DENNIS TAYLOR |
| AND | PAUL HARRIS VICTOR BRAVO |
| Court: | Clifford and Courtney JJ |
Counsel: | Applicant in Person |
Judgment: | 4 May 2021 at 3.30 pm |
JUDGMENT OF THE COURT
The application to extend time to bring the appeal is granted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
In a decision dated 1 October 2020, Downs J struck out Mr Taylor’s claim against Mr Bravo on the ground that it was time-barred.[1] On 23 November 2020 Mr Taylor filed a notice of appeal against the judgment, 23 days out of time. The Registry rejected it. Mr Taylor has applied under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal. Mr Bravo opposes the application.
[1]Taylor v Bravo [2020] NZHC 2565 [High Court decision].
The ultimate question on an application to extend time for appealing is what the interests of justice require.[2] Relevant factors are likely to include the length of and reasons for the delay, the conduct of the parties, particularly the applicant, any prejudice to other parties and the significance of any issues raised by the appeal. Although the merits of a proposed appeal may be relevant where it is obvious that the proposed appeal is completely hopeless, refusing an application to extend time should not be used summarily to dismiss weak appeals.[3]
The application
The length of and reasons for the delay
[2]Almond v Read [2017] NZSC 80, [2017] NZLR 801 at [38].
[3]At [39(c)].
As noted, the length of the delay here is 23 days. Although not minimal, it is not lengthy either. Mr Taylor explains that he was awaiting the transcript of the hearing before finalising the notice of appeal and that the Court misplaced his request for the transcript. Mr Bravo does not accept that this is a legitimate explanation, asserting that Mr Taylor did not need the transcript in order to bring an appeal.
In assessing Mr Taylor’s explanation, we take into account the fact that he is unrepresented, 80 years old and in difficult personal circumstances. A person with representation or with a better understanding of procedural requirements could be expected to have filed the notice of appeal notwithstanding the lack of a transcript. However, in the circumstances of this case, we do not consider the delay to be serious or unjustified.
Prior conduct of the applicant
Mr Bravo also opposes the application on the ground that Mr Taylor has a history of bringing hopeless cases, pointing to a previous case in which Mr Taylor had been refused an injunction in respect of a mortgagee sale. The mortgagee sale involved the same property as is the subject matter of the present proceeding. The mortgagee was a trust associated with Mr Bravo. We accept that Gilbert J, who refused the injunction, considered that no arguable claim had been established.[4] But the nature of the present claim is quite different and we think that it overstates the matter considerably to describe Mr Taylor as having a history of bringing hopeless claims.
Prejudice to the respondent
[4]Taylor v Ingleside Trust HC Auckland CIV-2017-404-961, 6 June 2017 (Minute of Gilbert J).
We accept that the matter related to events that occurred some years ago and that Mr Bravo would undoubtedly prefer to have the matter resolved as quickly as possible. However, it has not been suggested that there is any actual prejudice to Mr Bravo, given the relatively short delay.
Merits of proposed appeal
Finally, Mr Bravo contends that the proposed appeal has no merit, relying on Downs J’s conclusion that the claim was time-barred. In our view the position is not quite so clear. In the context of an application under s 229A it is not for us to consider the merits of the case in any depth, but we are not satisfied that the proposed appeal can be dismissed as entirely hopeless.
As Downs J explained, the basis for Mr Taylor’s claim was difficult to discern from his statement of claim.[5] The statement of claim did not explicitly identify the legal basis. Rather, it gave the following narrative regarding a partnership between Mr Taylor and Mr Bravo which involved the subdivision and development of land in Waihi. Mr Taylor maintained that the basis of the partnership agreement was that Mr Bravo would supply the funding and he (Mr Taylor) would attend to the actual development and construction. The land was purchased in 2005 by Mr Bravo’s trust, the Ingleside Trust, and subdivided. Ingleside held three titles and the previous owner one. Contrary to their agreement, Mr Bravo insisted on selling the Ingleside sections rather than completing the intended development. Mr Taylor bought the Ingleside titles through his own trust, the Moresby Trust, for $500,000. He funded the purchase partly with bank borrowing ($284,945), partly with vendor finance from Ingleside ($147,356) and partly with a credit to his construction business ($67,654). Mr Taylor defaulted on both loans. He was bankrupted on the bank’s application in 2013 and the land was sold by mortgagee sale in 2017.
[5]High Court decision, above n 1, at [7].
Mr Taylor complained that if his contribution to the partnership had been made at the time of the mortgage his bankruptcy could have been avoided. He claimed that it was not until he received the notice of his default under the Ingleside mortgage in late 2016 that he realised Mr Bravo had deceived him. The statement of claim referred to “incorrect accounting” by Mr Bravo and Mr Bravo’s failure to honour the partnership agreement.
Mr Taylor was assisted in the formulation and argument of his claim by an accountant, Mr Groves. The Judge relied in part on Mr Groves’ submission when describing the basis for the claim. The Judge perceived the claim to be one for breach of a partnership agreement and a failure to account for profits.[6] He treated the identifiable breaches as having occurred in 2007 and relating to (1) a failure by Mr Bravo to reimburse Mr Taylor for $65,000 expended by Mr Taylor in relation to the property development, (2) Mr Bravo breaching the partnership agreement by forcing the sale of the lots held by Ingleside and (3) Mr Bravo requiring Mr Taylor to give a mortgage to secure vendor finance to support Mr Taylor’s purchase of the properties.[7] The statement of claim was filed in June 2020. The Judge held that, subject only to the fraud exception in s 28 of the Limitation Act 1950, the claim would be barred.[8] He went on to find that, even if fraud had been alleged (which Mr Groves disavowed during argument) it would have been either discovered or discoverable in 2007.[9]
[6]High Court decision, above n 1, at [7].
[7]At [8]–[10].
[8]At [15]–[19].
[9]At [20] and [22].
We have sympathy with the Judge in attempting to discern the relevant legal basis for the claim, given the lack of legal expertise in the formulation of the statement of claim. If the Judge is correct regarding the nature of the claim, then there would seem to be little merit in the proposed appeal. However, it seems possible that the narrative in the statement of claim is properly seen as an assertion that the property was held by Ingleside (implicitly under Mr Bravo’s control) on trust for the partnership of Mr Bravo and Mr Taylor. If so, when the property was sold in 2007 for $500,000, each was entitled to half the value but Mr Taylor’s payment for the whole of the value resulted in Mr Bravo (as trustee of Ingleside or personally) receiving $250,000 to which he was not entitled. The correct legal response, arguably, was a claim against Mr Bravo (either as trustee of the Ingleside Trust or as a knowing recipient in his own right) to restore those trust monies. If the claim is viewed in that way, different issues, including regarding limitation, would arise.
These comments are not intended to suggest anything more than the possibility that the true nature of Mr Taylor’s claim was not fully appreciated. It is not for us to express any view as to the likely outcome of an appeal. It is sufficient that we do not see the merits of the appeal as so hopeless as to justify refusing leave to bring the appeal.
Result
The application to extend time to bring the appeal is granted.
Solicitors:
Sanderson Weir, Auckland for Respondent