Ward v Cockrell - [2014] NZCA 14

IN THE COURT OF APPEAL OF NEW ZEALAND

CA410/2013
[2014] NZCA 14

BETWEEN	RUSSELL STUART WARD Applicant
AND	BRAD AND ELLEN LOUISE COCKRELL Respondents

Hearing:	10 February 2014
Court:	O’Regan P, Ellen France and Randerson JJ
Counsel:	Applicant in person G D Stringer and A King for Respondents
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,…

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.

Continue reading Ward v Cockrell

Details

AGLC: Ward v Cockrell [2014] NZCA 14
Case: [2014] NZCA 14
Decision Date: 12 February 2014 at 12:30pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Mr. Russell Stuart Ward for an extension of time to appeal a decision made by Associate Judge Doogue in a summary judgment proceeding brought by the respondents, Brad and Ellen Louise Cockrell. Mr. Ward, the applicant, filed a notice of appeal two days out of time, which was subsequently rejected. The application for an extension of time was filed four months after the time for appealing expired. Mr. Ward subsequently became bankrupt, and the Official Assignee formally abandoned any right to prosecute the application and the proposed appeal. The central legal issues were whether the tenancy agreement was a sham, and if it was subject to the Residential Tenancies Act 1986. The court dismissed the application for an extension of time, finding that there was no seriously arguable point Mr. Ward could take on appeal. The applicant must pay costs to the respondents as for a standard application for leave together with usual disbursements.

The Court of Appeal of New Zealand considered the application for an extension of time to appeal against a judgment delivered by Associate Judge Doogue in a summary judgment proceeding. The legal issues the court needed to decide were whether the tenancy agreement was a sham, and if it was subject to the Residential Tenancies Act 1986. The Associate Judge was satisfied that the tenancy agreement was a sham and rejected the argument based on the Residential Tenancies Act. The Court of Appeal considered the overarching consideration in determining whether to grant the application for an extension of time was where the interests of justice lie, including 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. The court found that there was no seriously arguable point which might be taken on appeal for the reasons Associate Judge Doogue gave. The result was the dismissal of the application for an extension of time, with the applicant to pay costs to the respondents as for a standard application for leave together with usual disbursements.

Orders