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White v Spence

White v Spence

Case [2014] NZCA 298 2 July 2014

Admissibility of Evidence

Appeal

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA510/2013
[2014] NZCA 298

BETWEEN	AMANDA ADELE WHITE First Appellant
ANNE LEOLINE EMILY FREEMAN Second Appellant
AND	STUART GORDON SPENCE First Respondent
CHRISTOPHER MAURICE LYNCH Second Respondent

Hearing:	23 June 2014
Court:	Harrison, Wild and French JJ
Counsel:	R S Pidgeon for Appellants P J Wright for Respondents
Judgment:	2 July 2014 at 3.30 pm

JUDGMENT OF THE COURT

AThe application under r 43(2) of the Court of Appeal (Civil) Rules 2005 for an extension of time to apply for a fixture and file a case on appeal is granted.
BThe application under r 29A of the Court of Appeal (Civil) Rules for an extension of time to file an appeal against the costs decision in the High Court is granted.
CThe application under r 45 of the Court of Appeal (Civil) Rules to adduce further evidence is declined.
DThe appellants are to pay the respondents’ costs as for a standard application for leave to adduce further evidence on a band A basis with usual disbursements.
ECosts on the applications under rr 43(2) and 29A are to lie where they fall.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

On 17 July 2013 Ms White and Ms Freeman filed an appeal against a decision of Priestley J.[1]
[1]Spence v Lynch [2013] NZHC 1478.
This judgment concerns three interlocutory issues that have since arisen.
The first is an application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) to apply for a fixture and file a case on appeal. An extension is required because Ms White and Ms Freeman did not comply with the time requirements for attending to those matters. The delay was, however, only seven days. The respondents have appropriately consented to an extension of time being granted and we so order.
The second issue for determination arises because Ms White and Ms Freeman wish to adduce further evidence on appeal. That application, made under r 45, is opposed.
The third issue has arisen because on 8 May 2014 Ms White and Ms Freeman filed an amended notice of appeal. The notice purports to include for the first time an appeal against Priestley J’s costs decision, which was delivered in a separate judgment on 11 October 2013.[2] The respondents submit that in the absence of any application for an extension of time to appeal, this aspect of the appeal should be dismissed.

Factual background

[2]Spence v Lynch [2013] NZHC 2668.

Ms White was in a de facto relationship with Mr Spence, one of the respondents, for some years.
She established a family trust called the DCT Trust. There were three trustees: Ms White herself, her solicitor Mr Lynch (the other respondent) and her mother Ms Freeman.
The relationship between Ms White and Mr Spence subsequently broke down. Following the breakdown of the relationship, Mr Spence filed proceedings in the High Court against Mr Lynch seeking repayment…

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 Spence

Details

AGLC: White v Spence [2014] NZCA 298
Case: [2014] NZCA 298
Decision Date: 2 July 2014 at 3.30 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, the case of White v Spence addresses an appeal brought by Amanda Adele White and Anne Leoline Emily Freeman against Stuart Gordon Spence and Christopher Maurice Lynch. The original dispute, adjudicated by Priestley J, involved claims of repayment of advances made to a family trust, the DCT Trust, and subsequent counterclaims of negligence and breach of fiduciary duty. The appeal sought to challenge the findings and costs decision of the High Court. The Court of Appeal dealt with three main interlocutory issues: the grant of an extension of time to file a case on appeal, the admissibility of new evidence, and the appeal against the costs decision.

The primary legal issues before the Court of Appeal were whether to grant an extension of time to file a case on appeal, whether to permit the introduction of new evidence that was not presented at the trial, and whether to allow an appeal against the costs decision despite the late filing. The Court of Appeal had to consider the strict constraints on admitting new evidence, particularly its freshness, credibility, and cogency. Additionally, the Court assessed the necessity and impact of granting an extension of time for the appeal against the costs decision.

The Court of Appeal granted the application for an extension of time to file a case on appeal, acknowledging the minimal delay and the respondents' consent. However, the Court rejected the application to adduce further evidence, emphasizing that the evidence was neither fresh nor presented with compelling circumstances. The new evidence, largely consisting of bank statements and an account reconciliation, was deemed to be discoverable at the time of the trial. The Court ruled that the appellants, whether self-represented or not, are obliged to present their best case at trial and cannot recast their case on appeal by introducing new evidence. The appeal against the costs decision was allowed with an extension of time, considering the narrow scope of the appeal and the minimal prejudice to the respondents. Costs for the application to adduce further evidence were awarded to the respondents, while costs for the other applications were to lie where they fell.

The final orders of the Court of Appeal granted extensions of time for filing the case on appeal and for appealing the costs decision, but declined the application to adduce further evidence. Costs for the application to adduce further evidence were awarded to the respondents, while costs for the other applications were to lie where they fell.

Orders