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Ward v Ward

Ward v Ward

Case [2022] NZCA 428 9 September 2022

Unconscionable Conduct

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA160/2021
[2022] NZCA 428

BETWEEN	RUSSELL STUART WARD Appellant
AND	CHRISTOPHER ALLAN WARD AND DIANE LORRAINE JAMES Respondents

CA473/2021
BETWEEN	MILES ROGER WISLANG Appellant
AND	THOMAS BRENDAN MAKINSON Respondent

Hearing:	10 March 2022
Court:	Brown, Clifford and Courtney JJ
Counsel:	Appellant in CA160/2021 in Person Appellant in CA473/2021 in Person A M Kalinowski for Respondents in CA160/2021 D J More for Respondent in CA473/2021 N M H Whittington as counsel assisting the Court
Judgment:	9 September 2022 at 10.30 am

JUDGMENT OF THE COURT

AIn CA160/2021 the application for an extension of time to file the case on appeal and apply for a hearing date is declined. The appeal is struck out.

B In CA473/2021 the appeal is struck out.

CIn both appeals the appellants must pay the respondents costs for an interlocutory application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

This decision concerns three interlocutory applications:
(a)in CA160/2021, by the appellant Mr R Ward for an extension of time to file the case on appeal and apply for a hearing date;
(b)also in CA160/2021, by the respondents Mr C Ward and Ms James to strike out the appeal; and
(c)in CA473/2021, by the respondent Mr Makinson to strike out the appeal.
The particular issue for decision is whether the Court has jurisdiction to strike out an appeal which, by effluxion of time, is already to be treated as having been abandoned.

The relevant rules

The Court of Appeal (Civil) Rules 2005 (the Rules) contain various provisions which incentivise the timely prosecution of appeals by appellants. As relevant here:
(a)Rule 35 requires an appellant to pay security for costs within 20 working days of the filing of their appeal. Failure to do so entitles the Court, on its own initiative or on a respondent’s interlocutory application, to strike out an appeal under r 37(1).
(b)Rule 43(1) provides that an appeal is to be “treated as having been abandoned” if the appellant does not apply for the allocation of a hearing date and file the case on appeal within three months after the appeal is brought. An appellant may apply for a hearing date “at any time” (r 38(1)), but may not do so if in default of their obligation to pay security for costs (r 38(2)).
(c)Rule 44A gives the Court a general power to strike out or stay an appeal or cross-appeal. The grounds for doing so are specified in r 44A(1), which states:
(1) In addition to any express power in these rules to strike out an appeal, the Court may, on an interlocutory application or on its own initiative, make an order striking out or staying an appeal in whole or in part if—
(a) the appellant is in continuing default in complying with any of these rules or with any procedural direction or order made by a Judge; or
(b) the…

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 Ward

Details

AGLC: Ward v Ward [2022] NZCA 428
Case: [2022] NZCA 428
Decision Date: 9 September 2022

CaseChat Overview and Summary

This appeal concerns two interlocutory applications, one by Mr R Ward to extend the time for filing his appeal, and the other by Mr Makinson to strike out Mr Wislang's appeal. The Court was required to determine whether it had jurisdiction to strike out an appeal which, by effluxion of time, was to be treated as having been abandoned. The Court of Appeal (Civil) Rules 2005 provided that an appeal was to be treated as having been abandoned if the appellant did not apply for the allocation of a hearing date and file the case on appeal within three months after the appeal was brought. However, an appeal could be reinstated if an extension of time was granted under Rule 43(2). The Court also had power to relieve an appellant as regards the requirements of Rule 43. The issue before the Court was the status of an appeal that had been deemed abandoned but had not yet been reinstated. The Court held that an appeal deemed abandoned was not necessarily the end of the matter or the appeal. The Court had jurisdiction to hear and determine an extant application to strike out an appeal after the first three-month period had elapsed. However, it was not obligated to do so. The Court may well consider that the application should be determined where issues of abuse of process were raised or where a res judicata determination was justified. In the present case, the application to strike out Mr Ward's appeal was granted to avert the prospect of a pointless application for an extension of time to file a fresh appeal. The application to strike out Dr Wislang's appeal was also granted, given the possibility that he might apply for leave to appeal afresh. The appellants were ordered to pay the respondents' costs for an interlocutory application on a band A basis and usual disbursements.

Orders