Ward v Cockrell
[2014] NZCA 14
•12 February 2014 at 12:30pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA410/2013 [2014] NZCA 14 |
| BETWEEN | RUSSELL STUART WARD |
| AND | BRAD AND ELLEN LOUISE COCKRELL |
| Hearing: | 10 February 2014 |
Court: | O’Regan P, Ellen France and Randerson JJ |
Counsel: | Applicant in person |
Judgment: (On the papers) | 12 February 2014 at 12:30pm |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is dismissed.
BThe applicant must pay costs to the respondents as for a standard application for leave together with usual disbursements.
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REASONS OF THE COURT
(Given by Randerson J)
Introduction
Mr Ward applies under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal against a judgment of Associate Judge Doogue delivered on 18 December 2012 in summary judgment proceedings brought by the respondents.[1] Mr Ward filed a notice of appeal against the Associate Judge’s decision on 11 February 2013. The notice was rejected as it was two days out of time. The application for an extension of time was filed on 18 June 2013, some four months after the time for appealing expired.[2]
[1]Cockrell v Ward [2012] NZHC 3434.
[2]A second application for an extension of time was filed on 16 August 2013.
Since the application was filed, Mr Ward has been adjudicated bankrupt on 30 January 2014 upon the application of the respondents. On 5 February 2014 the Official Assignee notified the Court that Mr Ward’s right to pursue this application had vested in the Official Assignee[3] and that he did not intend to pursue the application further. The Official Assignee has also formally abandoned any right to prosecute the application and the proposed appeal.
[3]Pursuant to s 101 of the Insolvency Act 2006.
When the application was called before us, Mr Ward and counsel for the respondents appeared by video-link from Auckland. Mr Ward said he had not received any prior communication from the Official Assignee about the status of his application. Mr Ward informed the Court that he intended to appeal against the order for his adjudication in bankruptcy.
After discussion, it was agreed that his application would, in the circumstances, be considered on the merits in any event. Mr Ward also requested that the matter be dealt with on the papers and informed the Court that he did not wish to make any further oral submissions. Mr Stringer for the respondents agreed that the matter could proceed on this basis.
Background
The respondents are the registered proprietors of a property at Mercer. They purchased the property at mortgagee sale from ANZ National Bank Ltd. Ownership was transferred to them on 18 October 2012. The prior owner, and mortgagor, was Mr Ward.
Following the mortgagee sale, Mr Ward refused to leave the property.
Mr Ward had earlier applied for an injunction to stop the sale of the property by the bank on the basis that he had already sold the property to a third party, a Mr Hays. The agreement recorded that the property was sold for $1 and that the possession date was to be 25 October 2011. The agreement referred to a tenancy in which Mr Ward was to be the tenant with rent payable at $100 per month for an “ongoing” term. Mr Ward also produced a separate tenancy agreement in his favour.
In a judgment delivered on 15 October 2012, Lang J dismissed Mr Ward’s application for an injunction to stop the mortgagee sale.[4] The judgment recorded that Mr Ward had been informed that the purported sale to Mr Hays could not take priority over the bank’s power of sale since the mortgage had been executed and registered long before Mr Ward entered into the agreement for sale. In the judgment under appeal, Associate Judge Doogue expressed his agreement with Lang J’s observations.[5]
[4]Ward v ANZ National Bank Ltd [2012] NZHC 2694.
[5]Cockrell v Ward, above n 1, at [3].
After the respondents acquired the property, Mr Ward refused to leave. This led to the respondents issuing summary judgment proceedings seeking the recovery of the property from Mr Ward and an order that he vacate the property.
Associate Judge Doogue was satisfied that the respondents were the registered proprietors of the property and that they had an indefeasible title.[6] The case therefore turned on whether the tenancy agreement (which has never been registered) could defeat the respondents’ entitlement to possession of the property. Two issues arose for determination. The first was whether, as the respondents submitted, the tenancy agreement was a sham. The second was whether, as Mr Ward submitted, the tenancy agreement was subject to the Residential Tenancies Act 1986.
[6]At [7].
While reminding himself that there was a need for caution in a summary judgment application, the Associate Judge was satisfied that the tenancy agreement was a sham.[7] He regarded it as inherently improbable on the facts that the alleged tenancy agreement was ever intended to have legal effect between Mr Ward and Mr Hays. The Judge noted that the consideration was only $1 against a sale price at tender of $700,000; despite the apparent sale, the agreement provided that Mr Ward was to retain title; and the tenancy for an indeterminate period at $100 per month did not seem to have any legitimate commercial purpose.
[7]At [16].
The Judge also rejected the argument based on the Residential Tenancies Act since he did not regard the tenancy as being one relating to residential premises nor was it for residential purposes.[8] Essentially, it was a lease of farmland on which Mr Ward lived in a caravan.
Mr Ward’s grounds for the application for an extension of time
[8]At [23].
Mr Ward’s grounds for his application focused principally on the issue of delay. He submitted that the delay in filing his initial notice of appeal was short. He submitted that his appeal was only one day out of time due to a miscalculation of the time period.[9] Mr Ward says the delay was partially caused by the stress of applying to the High Court to gain access to his possessions, alleged harassment by the respondents, and difficulty in removing his possessions from that property. He may also have attempted mistakenly to apply to the High Court for a review under s 26P of the Judicature Act 1908 before filing his notice of appeal in this Court. He submitted that it was in the interests of justice that an extension of time be granted.
[9]There he says he wrongly assumed that Auckland Anniversary Day was not counted as a working day.
At a very late stage, Mr Ward filed further materials which were not referred to in oral argument. They purport to record the constitution of the “Ward Whanau Trust” as a Maori Incorporation on 17 November 2013 and the vesting of the land in the Trust. Issues are raised about alleged human rights violations and it is suggested this Court is not authorised to “administrate” the “Russell Stuart Ward Estate”. We are satisfied that none of these additional issues has any substance.
Decision
Mr Ward had a right of appeal to this Court within 20 working days of the date of Associate Judge Doogue’s decision.[10] Upon an application under r 29A for an extension of time, the overarching consideration in determining whether to grant the application is where the interests of justice lie. Relevant factors include the length of the delay and the reasons for it; the conduct of the parties; the extent of any prejudice caused by the delays; and the prospective merits of the appeal.[11]
[10]Section 66 of the Judicature Act 1908 and r 29 of the Court of Appeal (Civil) Rules 2005.
[11]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19]; Robertson v Gilbert [2010] NZCA 429 at [24].
The delay in filing the appeal in the present case is short and this Court may have considered granting an extension if there had been any seriously arguable point Mr Ward could take on appeal. However, we are satisfied that there is no seriously arguable point which might be taken on appeal for the reasons Associate Judge Doogue gave. We also note that Mr Ward did not make any submission challenging the merits of the judgment at issue.
Result
The application for an extension of time to appeal is dismissed. The applicant must pay costs to the respondents as for a standard application for leave together with usual disbursements.
Solicitors:
Inder Lynch, Papakura for Respondents
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