West v West

[2018] NZCA 511

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA105/2018
 [2018] NZCA 511

BETWEEN	ALLAN JACK WEST Appellant
AND	GEOFFREY ALLAN WEST First Respondent
AND	DAVID JOHN CAMERON WEST Second Respondent
AND	THE PARTNERS OF LANGLEY TWIGG LAW Third Respondents

Court:	Cooper, Winkelmann and Gilbert JJ
Counsel:	Appellant in person D M Kerr for First and Second Respondents C L Bryant for Third Respondents
Judgment: (On the papers)	20 November 2018 at 3.30 pm

JUDGMENT OF THE COURT

The appellant’s application for an extension of time to file the case on appeal and apply for a hearing date is granted.  These steps must be taken within 20 working days of the date of delivery of this judgment failing which the appeal will be treated as having been abandoned.

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REASONS OF THE COURT

(Given by Gilbert J)

1. The appellant is 96 and lives alone on a rural property north-west of Auckland.  In 2014, he transferred this property to his two sons (the first and second respondents) for no payment and without receiving independent legal advice.  The appellant has been trying to unwind this transaction since 2015 contending it was an unconscionable bargain procured by undue influence by his sons and in consequence of the negligence of his solicitors (the third respondents) who accept they failed in their duty to the appellant by acting for all three parties without the appellant’s informed consent. 

2. The appellant’s claims were dismissed by the High Court in a judgment delivered by Downs J on 13 December 2017.[1] 

   [1]West v West [2017] NZHC 3110.

3. The appellant, who is unrepresented, has been endeavouring to exercise his right of appeal against this judgment but has missed deadlines.  On 28 February 2018, the appellant applied for an extension of time to appeal.  The respondents opposed this application despite the appeal being filed only 17 working days out of time.  The appeal could not be progressed until this application was dealt with.  An extension of time was duly granted by Brown J in a judgment delivered on 26 June 2018.[2]  The appellant then missed the deadline set by r 43 of the Court of Appeal (Civil) Rules 2005 which provides that an appeal is 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.  The appellant now applies for an extension of time to take these steps. 

   [2]West v West [2018] NZCA 216.

4. The respondents oppose the application.  They say they wish to avoid ongoing uncertainty and unnecessary delay.  The respondents argue that the appellant has already been granted a significant indulgence and there is no justification for another.  They contend that the appellant wishes to prolong the proceeding indefinitely.

5. The discretion to extend time under r 43 is to be exercised to best serve the interests of justice.  We are satisfied the interests of justice require that a brief extension of time be granted and the appeal brought on for hearing so that it can be determined on its merits with a minimum of further delay.  Our reasons can be shortly stated. 

6. The issues on the appeal are of considerable importance for the appellant and the first and second respondents.  It is in the interests of all parties that ownership of the property is finally determined as soon as practicable. 

7. While the delay since the judgment was delivered is regrettable, some of it was occasioned by the respondents’ opposition to the appellant’s initial application for an extension of time to appeal.  In the light of the Supreme Court’s decision in Almond v Read, it is questionable whether that application should have been opposed.[3]  Other delay has been caused by the misguided steps the appellant recently took in the High Court to obtain further discovery.  Those applications were dismissed by Edwards J on 19 October 2018.[4]   However, we do not consider the delay consequent on these steps should weigh significantly in the balance given the appellant’s advanced age and the fact he is unrepresented. 

   [3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].

   [4]West v West [2018] NZHC 2723.

8. The respondents are unable to point to any specific prejudice caused by the delay.  We accept their submissions that finality is needed so that all parties can have certainty regarding ownership of the property.  However, this can be achieved without sacrificing appeal rights.  The Court is naturally reluctant to deny the appellant’s right of appeal because of comparatively minor and inconsequential procedural defaults.  The appeal should be determined on its merits with a minimum of further delay.

Result

1. The appellant’s application for an extension of time to file the case on appeal and apply for a hearing date is granted.  These steps must be taken within 20 working days of the date of delivery of this judgment failing which the appeal will be treated as having been abandoned.

Solicitors:
Bannister & von Dadelszen, Hastings for First and Second Respondents
Hesketh Henry, Auckland for Third Respondents