Terry v McLellan
[2014] NZCA 270
•25 June 2014 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA32/2014 [2014] NZCA 270 |
| BETWEEN | ROBERT FRANK TERRY |
| AND | ROSALIND MEGAN McLELLAN |
| Hearing: | 23 June 2014 |
Court: | Harrison, Wild and French JJ |
Counsel: | Applicant in person |
Judgment: | 25 June 2014 at 2.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is dismissed.
BThe applicant is to pay the respondent’s costs as for a standard application for leave to appeal under r 14 of the Court of Appeal (Civil) Rules 2005 on a band A basis with usual disbursements.
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REASONS OF THE COURT
(Given by Wild J)
Mr Terry applied under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal a judgment of Gendall J given in the High Court at Greymouth on 18 November 2013.[1] His application was made 11 working days outside the 20 working days period allowed by r 29(1)(a) for appealing as of right.
[1]Terry v McLellan [2013] NZHC 3045.
In his judgment Gendall J dismissed two applications brought by Mr Terry. The first was an application for leave to appeal out of time against orders made by Judge Moran in chambers in the Greymouth District Court on 26 April 2013, and minutes the Judge subsequently issued on 27 May, 18 July and 26 July 2013.
As Gendall J pointed out, the orders Judge Moran made were simply orders implementing an earlier judgment given in the District Court on 29 January 2013. Mr Terry had not sought to appeal against that substantive 29 January 2013 decision.
In that substantive judgment the District Court had determined that a property on the West Coast was owned by the parties (Mr Terry and his niece Ms McLellan) jointly. After inviting submissions from the parties, Judge Moran had given Mr Terry an opportunity to buy out Ms McLellan’s interest in the property at a figure not in dispute, and had allowed Mr Terry several months to do that. Mr Terry did not take that opportunity and subsequently Ms McLellan sold the property to her mother. As Mr Terry refused to receive his half share of the sale proceeds they have been placed with Public Trust in trust for him. Mr Terry has refused to uplift those monies.
Gendall J saw no scope for holding that any of those orders were wrong. Indeed he viewed them as very generous and accommodating to Mr Terry. Mr Terry did not suggest to Gendall J how or why the orders he sought to appeal were in error.
Gendall J also considered there would be acute prejudice to Ms McLellan if Judge Moran’s orders were undone, because the property had been sold to Ms McLellan’s mother.
Mr Terry’s other application to Gendall J was one to join the Solicitor‑General’s office as a third party. Mr Terry had submitted to the Judge that “the Crown is expected to correct the errors made in these judgments before the Courts”. The Judge could not see that the Crown was or should be involved in the proceeding.
Gendall J noted that Mr Terry was endeavouring to raise issues about judgments going back as far as 1992, which had no relevance to the two applications before the Judge.
Gendall J dismissed both Mr Terry’s applications and ordered Mr Terry to pay indemnity costs to Ms McLellan.
The grounds on which Mr Terry seeks an extension of time to appeal make no sense. They are:
1.Because the appeal process is a right not a privilege.
2.The Registrar is misguided by the courts legal counsel causing the delay.
3.Hon Justice Tippings judgment C.P. 9/92 Greymouth. Will be upheld by the courts
4All judgments after the case, will be set aside in the Supreme Court.
5.The Greymouth Court was the First defendant, represented by Raymond Donnelly Co
6The Solicitor General office is the legal representative for the courts in New Zealand
7.No High court judge ordered Mr Robert Terry to pay Brian Raymond Terry’s legal bills an obvious fact of Law The L.C.R.O. And he N.Z. Law society has requested Mr Brodie explain his misguided calculations
8.Under the Administration Act. Carruthers and Weatherill and Mr Brodie are in charge of the Terry brothers trust account. And all the errors made.
Mr Terry’s oral submissions threw no further light on what exactly is the point of his proposed appeal. Mr Terry began by drawing attention to the judgment Tipping J gave on 18 December 1992.[2] That judgment was on an application for judicial review of decisions made by the Family Court in a matrimonial property dispute between Mr Brian Terry and his wife Mrs Judith Terry. As Gendall J pointed out, that dispute has no relevance. Mr Terry also made submissions to us about problems and disputes arising from the sale of the Terry family farm, a property which we understand was owned, at the time it was sold, by the applicant (Mr Robert Terry) and his two brothers. Again, those disputes have no relevance. Mr Terry’s submissions suggest he does not understand that. It appears he is unable to distinguish between the various Terry family disputes that have occupied the courts now for over 20 years.
[2]Terry v The District Court at Greymouth HC Greymouth CP9/92, 18 December 1992.
We agree with Gendall J that the two applications he dismissed have no merit, for the reasons the Judge gave. In short, what Mr Terry was seeking to challenge were orders implementing a judgment he had not appealed and could not sensibly challenge. Consequently, Mr Terry’s proposed appeal lacks any merit. There is no point in granting Mr Terry an extension of time to bring a meritless appeal that cannot succeed. Mr Terry’s application is accordingly dismissed.
Mr Terry is to pay Ms McLellan’s costs as for a standard application for leave to appeal under r 14 of the Court of Appeal (Civil) Rules 2005 on a band A basis with usual disbursements.
Solicitors:
Carruthers & Wetherall, Greymouth for Respondent
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