White v Lynch - [2016] NZCA 513

IN THE COURT OF APPEAL OF NEW ZEALAND

CA740/2015
[2016] NZCA 513

BETWEEN

AMANDA ADELE WHITE
First Applicant

ANNE LEOLINE EMILY FREEMAN
Second Applicant

AND

CHRISTOPHER MAURICE LYNCH
First Respondent

STUART GORDON SPENCE
Second Respondent

Hearing:	12 September 2016
Court:	Randerson, Wild and French JJ
Counsel:	Applicants in person J S Cooper for Respondents
Judgment:	21 October 2016 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005 is dismissed.
BThe application for an order debarring Mr Wright from acting further for the respondents is dismissed.
CWe direct the Registrar not to accept from either applicant, for filing, any fresh notice of appeal, application or other initiating document directed against the respondents or against Mr Peter Wright without the prior written consent of a judge of this Court.
DThe applicants must pay the respondents costs on each of the two applications as for an application for leave to appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

Two applications are for decision:
(a)An application filed on 21 April 2016, pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005, for an extension of time to file the case on appeal and apply for a hearing date. If we grant that application, the applicants will also require an extension of time to comply with the requirement to provide security for costs, pursuant to r 5(2), in order to prosecute their appeal.
(b)An application filed on 14 July for an order debarring Mr Peter Wright from acting further as counsel for the respondents.
These applications are made in an appeal filed on 23 December 2015. The appeal is against a judgment of Faire J delivered on 15 December 2015 in which, amongst other things, he adjudicated the applicants bankrupt.[1]

Background

[1]White v Lynch [2015] NZHC 3202.

The hearing of these applications is the fifth occasion on which the litigation between these parties has come before this Court, on every occasion at the suit of the two applicants, Ms White and Ms Freeman.
The genesis of the litigation — the source of the applicants’ concern — is a judgment Priestley J delivered on 19 June 2013 in which he gave judgment against the applicants in the sum of $130,158.[2]
[2]Spence v Lynch [2013] NZHC 1478.
Ever since Priestley J delivered that judgment, the applicants have been aggrieved. They claim the judgment was obtained by fraud, the fraud being the failure of Mr Spence to discover bank account statements relevant to his claim against the applicants in their capacity as trustees of the DCT Trust. We revert, in [25] to [29] below, to those parts of Priestley J’s judgment directly relevant to the present applications.
The applicants appealed to this Court against Priestley J’s decision on 17 July 2013. In a judgment delivered on 2 July 2014,[3] this Court granted 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 White v Lynch

Details

AGLC: White v Lynch [2016] NZCA 513
Case: [2016] NZCA 513
Decision Date: 21 October 2016 at 2.30 pm

CaseChat Overview and Summary

In the case of White v Lynch, the applicants, Amanda Adele White and Anne Leoline Emily Freeman, appealed against the bankruptcy adjudication against them and the refusal of their application to set aside the judgment of Faire J that struck out their claim. The respondents were Christopher Maurice Lynch and Stuart Gordon Spence, with Peter Wright acting as counsel for the respondents. The applicants sought an extension of time to file their appeal and an order debarring Mr Wright from acting for the respondents. The Court of Appeal dismissed both applications and directed the Registrar not to accept any further documents from the applicants against the respondents or Mr Wright without the prior written consent of a judge of the Court. The applicants were also ordered to pay the respondents' costs on each application.

The Court of Appeal considered the applicants' submissions regarding the relevance of the allegedly undiscovered bank statements to the proceeding heard by Priestley J. However, the Court was not satisfied that the applicants' assertions about the relevance of these documents had any merit. The Court found that the applicants' appeal had no prospect of success and that there was no failure to disclose relevant documents for which Mr Wright might be responsible. The Court also noted that the applicants had ignored previous directions and were vexing the Court, which led to the decision to restrict further filings without the consent of a judge.

Orders