Thow v Shawyer

[2010] NZCA 578

IN THE COURT OF APPEAL OF NEW ZEALAND

CA559/2010
[2010] NZCA 578

BETWEENBRENDAN SHANE THOW

Applicant

ANDJOHN COBDEN SHAWYER

Respondent

Hearing:30 November 2010

Court:Chambers, Randerson and Stevens JJ

Counsel:R A A Weir for Applicant

M J Tingey and M J McKay for Respondent

Judgment:2 December 2010 at 2.30 pm

JUDGMENT OF THE COURT

A            The application for an extension of time in which to appeal is dismissed. 

B            The applicant must pay the respondent costs for a standard application for leave to appeal on a band A basis and usual disbursements. 

REASONS OF THE COURT

(Given by Chambers J)

[1]        John Shawyer, the respondent, entered into an agreement with Brendan Thow, the applicant, to sell to Mr Thow his 50 per cent shareholding in Alpine Heliski Limited.  Mr Thow failed to settle.  Mr Shawyer sued for specific performance.  He obtained a decree of specific performance by way of summary judgment on 3 July last year.[1]  On 2 September this year, almost 14 months after the High Court judgment, Mr Thow applied for an extension of time in which to appeal.

[1]     Shawyer v Thow HC Invercargill CIV-2009-425-177, 3 July 2009.

[2]        We decline the application for the following reasons, taken together.

[3]        First, the application is grossly late.  It is more than a year out of time.  Mr Thow knew he had a right of appeal.  According to him, he discussed it with his then lawyer, who told him there was no point in appealing.  If that advice was wrong, Mr Thow will have his remedies.  As it happens, we think the advice was right. 

[4]        Secondly, Mr Weir, Mr Thow’s new counsel, now seeks to advance a defence on completely new grounds.  Mr Thow attempts to argue there was an implied term, which had not previously occurred to him or his former lawyer.  The suggested term does not meet the standard requirements for implied terms.  He faces a further difficulty in that the agreement between Mr Shawyer and Mr Thow has an “entire agreement” clause.  The second new ground, namely that there was no consideration, is plainly nonsense.  The third new ground, based on the Contractual Mistakes Act 1977, appears to have little merit.  Mr Weir says he relies on s 6(1)(a)(i), but there is no evidence to support the assertion that Mr Shawyer knew of Mr Thow’s alleged mistake. 

[5]        Thirdly, we have considerable doubt as to whether this appeal is brought in good faith.  It appears to be little more than an attempt to hold up Mr Shawyer from enforcing his judgment.  Mr Thow has proved difficult about revealing his assets.  Just as Mr Shawyer was getting close to finding out how best he could enforce the judgment, Mr Thow decided to bring this application in an attempt to ward off further progress on Mr Shawyer’s part.  We enquired of Mr Weir whether Mr Thow would be able to pay into court the judgment debt or part of it if we were to grant an extension of time in which to appeal upon such a condition.[2]  Mr Weir advised that payment in would not be possible. 

[2]     For our power to impose conditions on granting an extension of time in which to appeal, see Court of Appeal (Civil) Rules 2005, rr 29A(5) and 27(2)(a). 

[6]        Finally, to allow Mr Thow to reopen the summary judgment at this late stage would cause significant prejudice to Mr Shawyer.  Following his sale of the shares, Mr Shawyer moved to Sydney.  He has not been active in Alpine Heliski since selling the shares.  He has also spent considerable money in trying to enforce the judgment he obtained. 

[7]        For all these reasons, it would be quite inappropriate to allow Mr Thow to appeal at this late stage. 

Solicitors:

Clive Gardner Law, Mt Maunganui, for Applicant

Bell Gully, Auckland, for Respondent