Wardell v ASB Bank Ltd
[2015] NZCA 344
•31 July 2015 at 11:30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA97/2015 [2015] NZCA 344 |
| BETWEEN | AMANDA JOSEPHINE WARDELL |
| AND | ASB BANK LIMITED |
| Hearing: | 27 July 2015 |
Court: | Ellen France P, Randerson and Miller JJ |
Counsel: | Applicant in Person (with Mr Thow as McKenzie Friend) |
Judgment: | 31 July 2015 at 11:30 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to file the appeal is granted.
BTime is extended to the date of service of a copy of the notice of appeal on the respondent’s solicitors.
CThere is no order for costs.
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REASONS OF THE COURT
(Given by Randerson J)
Background
On 5 February 2015 Associate Judge Osborne entered judgment in the High Court against the applicant Ms Wardell in the sum of $362,009.51 together with interest and costs.[1] The judgment was entered after Ms Wardell failed to appear at the first call of a summary judgment application filed against her by the respondent (the ASB) in respect of sums said to be outstanding on loans secured by a mortgage registered over a property in Ms Wardell’s name.
[1]ASB Bank Ltd v Wardell [2015] NZHC 108.
Ms Wardell had not filed any documents in opposition to the application for summary judgment but had asked an Australian lawyer to seek an adjournment. An informal request by the lawyer’s associate Ms Woodward for an adjournment was made to the High Court by email on 30 January 2015. Associate Judge Osborne issued a minute on 2 February 2015 in which he noted there was no application before the Court for an adjournment other than the informal email. The minute confirmed that the summary judgment application would be called on 4 February 2015 as listed. The Registry was directed to email a copy of the minute to the foreign based lawyer and to another email address which Ms Wardell accepted before us was the email address of her husband. Ms Wardell confirmed she was living at the same address as her husband.
Ms Wardell did not give a clear answer to our questions about whether she received the minute of 2 February before the hearing on 4 February. She confirmed she was aware this was the date of the first call of the application. She said she did not appear because she thought her lawyer was seeking an adjournment. We note however that in Ms Woodward’s email to the Court of 30 January she said the advice given to Mr Thow was that he should attend the Court and apply for an adjournment. Ms Woodward said in her email to the Court that Mr Thow had just telephoned from the Court to say that a Registrar had refused to deal with him. Ms Woodward understood Mr Thow was still in the Court precincts when she sent the email and asked that her memorandum of advice to Mr Thow and Ms Wardell (which she attached to her email) be filed and drawn to the attention of the presiding Judge.
Ms Wardell accepted in answer to questions from us that she had not been informed before 4 February 2015 that an adjournment had been granted.
Ms Wardell said she did not receive advice of the entry of summary judgment for some time after 5 February 2015. When she learned of the judgment, she filed a notice of appeal within the time prescribed but did not serve a copy on the ASB within the 20 working day period required by r 31(1)(b) of the Court of Appeal (Civil) Rules 2005 (the Rules). It was this failure to serve a copy of the notice of appeal on the ASB which has necessitated her application for an extension of time to file an appeal under r 29A of the Rules.
After filing the notice of appeal, Ms Wardell requested a waiver of the filing fees and dispensation from the payment of security for costs. When the request was received, the Registry sought a response from the ASB’s solicitors. The solicitors informed the Registry there had been no formal service of the notice of appeal. The Registry then sent a copy of the notice of appeal to the ASB’s solicitors. They submitted there was no jurisdiction to consider the application for dispensation as the appeal had not been properly brought.
By minute of 20 April 2015 Randerson J gave the following directions:
(a)The appellant’s request will be treated as an application for extension of time to appeal.
(b)If she has not already done so, the appellant must formally serve a copy of the notice of appeal on the respondent’s solicitors at the address given in the memorandum filed by the respondent on 15 April 2015. This must be done no later than 1 May 2015.
(c)The appellant must also no later than 1 May 2015 file and serve a memorandum explaining why she failed to serve a copy of the notice of appeal on the respondent as required by the Rules.
(d)The respondent must file and serve a memorandum setting out any opposing submissions no later than 8 May 2015.
(e)Each party is to advise in their memoranda whether the application for an extension of time may be dealt with on the papers (that is, without a hearing).
(f)The application by the appellant to dispense with security for costs will be deferred until after a decision is made on the application for an extension of time.
Thereafter, Ms Wardell promptly served a copy of the notice of appeal on the ASB’s solicitors and memoranda for both parties were filed. There was no agreement that the application for an extension of time could be dealt with on the papers. Accordingly, on 18 May 2015 I directed that the application for an extension of time be placed in the next available list for Miscellaneous Motions. I also invited the ASB to consider whether in the circumstances there were proper grounds to resist the application for an extension of time, leaving the application to dispense with security for costs to be dealt with by the Registrar.
We were informed at the hearing that the Court’s observations had been relayed to the ASB but it had instructed its solicitors to resist the application for extension an time.
Submissions
Ms Wardell appeared with her husband Mr Thow in support. For the first time she submitted material on which she would rely in order to dispute the claim for summary judgment by the ASB. Understandably, Mr Moffatt for the ASB did not have instructions on the matters raised. They included whether Ms Wardell could be responsible for an additional loan of $90,000 when it appears Ms Wardell had not signed the relevant loan documents. In earlier material, Ms Wardell maintained that the ASB had not exercised due diligence when exercising its power of sale in order to achieve a proper price. She said there is evidence that the property was worth a good deal more. Ms Wardell submitted that any error in the service of a copy of the notice of appeal was through ignorance of the Rules.
Mr Moffatt accepted on the ASB’s behalf that there was a technical default in terms of filing the appeal in time but submitted that the Court should decline an extension of time because the proposed appeal had no merit; the proper course would have been to apply to the High Court to set aside the judgment under r 12.14 of the High Court Rules; Ms Wardell ought to have been present in Court at the first call or arranged for a formal appearance by counsel; she had not filed any papers in opposition to the application; it was not appropriate for this Court to be considering a defence to summary judgment effectively in the first instance; and no tenable defence had been raised.
Principles
In considering an application for an extension of time to appeal under r 29A the overarching consideration is where the interests of justice lie.[2] Relevant considerations include the length of the delay and the reasons for it; the conduct of the parties; the extent of any prejudice caused by the delay; the prospective merits of the appeal; and whether the appeal raises any issue of public importance.[3]
Discussion
[2]Robertson v Gilbert [2010] NZCA 429 at [24].
[3]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224; (2009) 19 PRNZ 518 at [19].
Ms Wardell filed her appeal within time but there was a technical failure to bring the appeal within time arising from the lack of service of a copy of the notice of appeal on the ASB or its solicitors. When this error was brought to Ms Wardell’s attention, she promptly served a copy of the notice of appeal. We are satisfied that no prejudice has been caused to the ASB through her failure to meet the technical requirements of the Rules.
As to the merits of the appeal, we consider there may be arguable grounds to resist at least the quantum of the judgment entered against Ms Wardell in the High Court.[4] We accept Mr Moffatt’s submission that Ms Wardell has not placed any affidavit evidence before this Court to support her proposed grounds of appeal.
[4]Robertson v ASB Bank Ltd [2014] NZCA 597.
In the circumstances, we consider the application for an extension of time to file the appeal should be granted.
If Ms Wardell wishes to advance the appeal, it will be necessary for the Registrar to make a decision on Ms Wardell’s application for dispensation from the payment of security for costs. Ms Wardell will also need to apply promptly for leave to file affidavits in this Court if she decides to pursue the appeal.
However, we see considerable merit in the suggestion by the ASB that Ms Wardell’s better course is to file an application in the High Court to set aside the judgment entered against her by default. Our reasons for this suggestion are these. First, provided the ASB does not take any point against Ms Wardell by reason of the delay occasioned by her pursuing this appeal, then there ought to be no prejudice to Ms Wardell in proceeding in the High Court. Mr Moffatt did not have instructions on this point but acknowledged the lack of merit in the ASB suggesting Ms Wardell should make an application to the High Court but then attempting to argue that any such application should be declined through delay while she pursued the appeal. Second, if Ms Wardell promptly files supporting affidavits in the High Court, then that Court can make an appropriate assessment of the merits of the application to set aside the judgment including any arguable defences that may be available to Ms Wardell. Third, if an application to set aside the High Court judgment is declined, there would be a right of appeal to this Court from that decision.
In the circumstances, we urge the parties to consider this option. We would also encourage Ms Wardell to obtain appropriate legal advice before proceeding further.
Result
The application for an extension of time to file the appeal is granted.
Time is extended to the date of service of a copy of the notice of appeal on the respondent’s solicitors.
Given that Ms Wardell is not represented there is no order for costs.
Solicitors:
Bell Gully, Auckland for Respondent
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