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IN THE COURT OF APPEAL OF NEW ZEALAND
CA204/2015 [2015] NZCA 501
BETWEEN
JULIA ORETI TOD, ALISTAIR MICHAEL TOD, MARK ALEXANDER TOD AND MATTHEW JOHN TOD Appellants
AND
SHEILA HOLMS TOD SUED AS EXECUTOR AND TRUSTEE OF THE WILL OF THE LATE ALEXANDER MICHAEL TOD Respondent
Court:
Wild, Winkelmann and Kós JJ
Counsel:
G L Harrison for Appellants ACM Fisher QC and Z A Matheson for Respondent
Judgment:
(On the papers)
17 November 2015 at 3.30 pm
JUDGMENT OF THE COURT
AThe application, treated as one under r 35(6)(d) of the Court of Appeal (Civil) Rules 2005 for an order deferring the date by which security for costs must be paid, and under r 43(3) for an extension of time, is declined.
BThe appellants are to pay the respondent’s costs as for an application for leave to appeal on a band A basis with usual disbursements.
This judgment deals with an interlocutory application filed by the appellants on 5 August 2015. That application sought orders:
(1)extending the time for fixing the security for costs in respect of this appeal to 21 August 2015;
(2)then fixing security for costs, now, at $5,880.00;
(3)fixing a date by which security is to be paid[.]
In fact, on the day the appeal was filed, 21 April 2015, security for costs was fixed by the Court at $5,880. Counsel for the appellants was advised of that by letter dated 28 April.
Counsel for the appellants, Mr Harrison, candidly accepts the error in relation to security for costs was his.
With counsel’s agreement, we are treating the appellants’ application of 5 August as one made under r 35(6)(d) of the Court of Appeal (Civil) Rules 2005, for an order deferring the date by which security for costs must be paid, and also as an application under r 43(3) for an extension of time for the appellants to apply for the allocation of a hearing date and to file the case on appeal.
In agreeing to the application being treated in the manner just set out, Ms Fisher QC makes it clear the respondent is not abandoning the following point Ms Fisher made in a memorandum she filed on 24 August in opposition to the appellants’ 5 August application:
9.If the appellants are seeking an order under rule 35(6)(d) deferring the date by which security must be paid then the application must fail because, pursuant to rule 35(7)(a), such application must be filed and served within 20 working days of the notice of appeal being filed. That time has long since expired. If the appellants are seeking an extension of time for the filing of an application for the allocation of a hearing date then the respondent opposes this for the reasons set out below.
Chronology
Treated in the manner just outlined, the events relevant to the appellants’ application are these:
Date (2015)
Event
21 April
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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AGLC
Tod v Tod [2015] NZCA 501
Case
[2015] NZCA 501
Decision Date
CaseChat Overview and Summary
The case of Tod v Tod involved an interlocutory application filed by the appellants seeking orders to extend the time for fixing the security for costs in respect of their appeal and to fix the security amount at $5,880. The appellants, Julia Oreti Tod, Alistair Michael Tod, Mark Alexander Tod, and Matthew John Tod, were appealing against a judgment delivered by Brown J in the High Court at Tauranga on 23 March 2015. The respondent, Sheila Holms Tod, was the executor and trustee of the will of the late Alexander Michael Tod. The court had to decide on the appellants' request to defer the date by which security for costs must be paid and to grant an extension of time.
The court considered the application under r 35(6)(d) of the Court of Appeal (Civil) Rules 2005 for an order deferring the date by which security for costs must be paid and under r 43(3) for an extension of time. The court found that the application was out of time, as it should have been made within 20 working days of the notice of appeal being filed. However, the court was prepared to extend time for the application under r 35(6)(d) and fix a new date by which security must be paid, given the appellants' counsel's oversight and assurance that security would be paid promptly. The court then turned to the appellants' request for an extension of time under r 43(3).
The court considered the merits of the proposed appeal and found that the appeal had little prospect of success on the issue of removing Sheila Tod as the executor of Alec Tod's estate. The court found that Sheila's appointment as executrix and trustee was in line with Alec's wishes, and there was no evidence to suggest that Sheila had acted improperly. The court concluded that the appeal had no realistic prospect of success on issue (b) and, therefore, an extension of time to pursue issue (b) should not be granted.
The court dismissed the application, treated as one for an extension of time under r 35(6)(d) of the Court of Appeal (Civil) Rules for an order deferring the date by which security for costs must be paid, and under r 43(3) for an extension of time. The appellants were required to pay the respondent's costs as for an application for leave to appeal on a band A basis with usual disbursements. The court's decision was based on the lack of merit in the proposed appeal and the appellants' failure to comply with the court rules.