Vowles v Cooper Rapley
[2016] NZCA 142
•20 April 2016 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA305/2015 [2016] NZCA 142 |
| BETWEEN | RICHARD DUDLEY VOWLES |
| AND | COOPER RAPLEY |
| Hearing: | 18 April 2016 |
Court: | Harrison, Wild and Kós JJ |
Counsel: | PSJ Withnall for Applicant |
Judgment: | 20 April 2016 at 2.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to comply with r 43(1) is dismissed.
BThe applicant is to pay the respondent’s costs as for a standard application for leave to appeal plus usual disbursements.
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REASONS OF THE COURT
(Given by Wild J)
Mr Vowles applies under r 43(2) of the Court of Appeal (Civil) Rules 2005 for an extension of time to file the case on appeal. Mr Vowles filed this appeal on 29 May 2015. It was deemed abandoned under r 43(1) as of 1 September 2015, and Mr Vowles was advised of that by the Registry in a letter dated 14 September. That letter advised Mr Vowles of his ability to seek an extension of time pursuant to r 43(3) and that the application must be filed by 30 November. Mr Vowles filed the present application on 27 November.
Back on 29 June 2015 Mr Vowles had applied for an order dispensing with security for the costs of his appeal. The respondent had cross-applied for an order increasing security for costs to $13,930. Both those applications were dismissed by the Registrar in a decision she gave on 19 August. In that decision the Registrar required Mr Toomey to pay the security initially fixed at $5,880 by 16 September 2015. Mr Vowles paid that security on 14 September.
There is therefore some justification for Mr Vowles’ assertion that he was confused, and did not appreciate that, notwithstanding that security for costs remained unresolved, he needed to comply with r 43 by 31 August — three months from the filing of his notice of appeal.
We therefore focus on the merits of this appeal. As this Court has many times pointed out, while appeals as of right can be pursued irrespective of their merits, applications for leave to appeal and for extensions of time to appeal will only be granted if the appeal appears to have merit. Or — to put the matter the other way round — an extension of time will not be granted for a hopeless appeal. This is because there is simply no point.
From every point of view, this appeal is hopeless. It is against a judgment of MacKenzie J delivered in the High Court at Palmerston North on 1 May 2015 giving judgment against Mr Vowles on a claim he had brought against Cooper Rapley.[1] Mr Vowles had alleged Cooper Rapley had been careless in and about the way the firm had acted for him on a relationship property dispute between Mr Vowles and his wife.
[1]Vowles v Cooper Rapley [2015] NZHC 894.
Mr Vowles’ main complaint against Cooper Rapley was — and remains — that it had failed to advise him to accept Mrs Vowles’ offer of 10 June 2000 to settle for $250,000. The dispute between Mr and Mrs Vowles eventually went to a hearing in the Family Court. In a judgment that Court gave in May 2007, Mrs Vowles was awarded a total of $410,000.
Mr Vowles’ proceeding in the High Court was set down for formal proof at Cooper Rapley’s instance, after Mr Vowles had caused numerous delays and failed to take timely steps to get on with his claim. Collins J gave his hearing directions in a minute issued after a telephone conference on 9 December 2014. The uncontradicted evidence filed for Cooper Rapley is that Mr Vowles was notified of that telephone conference. Collins J’s minute records “despite the efforts of Spark Mr Vowles was not able to be connected to the telephone conference.” Collins J directed that Cooper Rapley “can prove its case against Mr Vowles by filing affidavit evidence and written submissions”.
Mr Vowles’ proceeding came on for hearing before MacKenzie J in the High Court at Palmerston North on 30 March 2015. Although Mr Vowles appeared, he had not filed any affidavit evidence and he had not given notice that he required any of Cooper Rapley’s witnesses for cross-examination.
MacKenzie J made the following findings in his judgment:
(a)There was never a real prospect of Mr Vowles settling his wife’s claim for $250,000. Her offer to settle for that amount appeared not to include her entitlement to a half share of the value of the homestead.[2]
(b)But, if there was any prospect of Mr Vowles settling with his wife for $250,000 around June 2000, then the failure to settle resulted entirely from Mr Vowles’ actions or inaction. He did not give Cooper Rapley the instructions they needed to negotiate with a view to settling. Further, on Mr Vowles’ instructions, Cooper Rapley sent a letter on 30 April 2001 counter-offering to settle for $10,456. That counter-offer ended any prospect of Mr and Mrs Vowles settling their dispute for $250,000.[3]
(c)On the evidence, Mr Vowles’ allegation of breach of duty by Cooper Rapley was not made out. In particular, his allegation that Cooper Rapley was responsible for the delay in bringing the matter on for hearing in the Family Court was not established. The evidence demonstrated that Mr Vowles was responsible for the delay.[4]
(d)Even had Mr Vowles established carelessness on Cooper Rapley’s part, no loss to Mr Vowles resulted. Assuming Mr Vowles would have had to borrow the $250,000 to settle in June 2000, he was financially better off with the judgment for $410,000 entered against him in the Family Court in May 2007. Interest on Mr Vowles’ borrowings in the interim would have exceeded the difference of $160,000 between the two figures.[5]
[2]At [9].
[3]At [8].
[4]At [10].
[5]At [12].
In his submissions for Mr Vowles, Mr Withnall emphasised that the touchstone on an application such as this is the interests of justice. He submitted that the situation where judgment had gone against Mr Vowles when he had not adduced any evidence nor had the ability to cross-examine, was not commensurate with justice. When the Court inquired of Mr Withnall how Mr Vowles proposed confronting the successive findings set out in [9] above, Mr Withnall responded that he did not know. There rests squarely on an applicant such as Mr Vowles the onus of demonstrating to this Court that there is merit in the appeal. Here, that onus required Mr Vowles to demonstrate to this Court how he proposed dealing with the adverse findings we have set out in [9] above. He has not done that. Indeed, he has made no attempt to do that. We infer this is because those findings are an obstacle Mr Vowles cannot surmount. In saying this, we imply no criticism whatsoever of Mr Withnall. His instructions to appear on this application are very recent and he advanced everything he possibly could for Mr Vowles, and in an admirably concise way.
For the reasons we have outlined, the application for an extension of time to comply with r 43(1) is dismissed.
The applicant must pay the respondent’s costs as for a standard application for leave to appeal plus usual disbursements.
Solicitors:
Robertsons, Auckland for Respondent
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