Wood v Glover
[2015] NZCA 36
•2 March 2015 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA670/2014 [2015] NZCA 36 |
| BETWEEN | JOHN LAING WOOD |
| AND | RAYMOND JOHN GLOVER |
| Hearing: | 9 February 2015 |
Court: | Ellen France P, Randerson and White JJ |
Counsel: | Applicant in person |
Judgment: | 2 March 2015 at 12.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time is dismissed.
BThe applicant must pay the respondent costs for a standard application on a band A basis with usual disbursements.
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REASONS OF THE COURT
(Given by White J)
Introduction
This is an application by Mr Wood for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 to file an application for leave to appeal against a decision of Ellis J declining his application under r 20.4 of the High Court Rules for an order extending the time for him to bring an appeal against a decision of Judge Blackie in the Manukau District Court.[1]
[1]Wood v Glover [2014] NZHC 738 [High Court decision] and Wood v Glover DC Manukau, CIV 2012-092-3837, 4 November 2013 [District Court decision].
Mr Wood’s District Court claim against Mr Glover was for conversion of a number of motor vehicles. Mr Wood sought recovery of the vehicles.
The vehicles had been imported into New Zealand under an agreement between Mr Wood and a company called Sanderson Investments Ltd owned by a Mr Sanderson who lived in Brisbane. The agreement provided that the vehicles remained the property of Sanderson Investments Ltd until settled from profits of sale to the end purchaser in New Zealand.
There is no dispute that Mr Glover took the vehicles from Mr Wood before they had been sold to an “end purchaser” in New Zealand and therefore at that time remained the property of Sanderson Investments Ltd.
Mr Glover’s defence was that he had been authorised to take possession of the vehicles by Mr Sanderson whose company owned them. On this basis Mr Glover said there could be no conversion.
In the District Court after a three day trial, during which the parties and Mr Sanderson gave evidence, Judge Blackie accepted Mr Glover’s defence and dismissed Mr Wood’s claim.[2]
[2]District Court decision, above n 1, at [56]–[57].
Mr Wood sought to appeal to the High Court against Judge Blackie’s decision, but failed to do so within the prescribed 20 working days, that is by 2 December 2013.[3] Instead, for various reasons relating to errors in service and delays in obtaining legal aid, Mr Wood’s appeal was not properly filed and served until 7 March 2014, some months out of time.
[3]High Court Rules, r 20.4(2)(b).
Mr Wood’s failure to file and serve his appeal within the prescribed period meant he had to apply to the High Court for special leave for an extension of time to appeal.
In the High Court Ellis J accepted that the delay had not been “particularly great”,[4] but decided that, as there was “no obvious error of analysis or approach” by Judge Blackie in respect of the merits of Mr Wood’s claim, leave should be declined.[5] The Judge said it was “impossible to conclude that the interests of justice favour the grant of an extension of time”.[6]
[4]High Court decision, above n 1, at [14].
[5]At [17]–[22] and [25]–[26].
[6]At [25].
Ellis J also recorded in her judgment that Mr Meyrick, who was then counsel for Mr Wood, had raised during the hearing before her an allegation of forgery in relation to one of the documents in evidence in the District Court.[7] The Judge granted leave to Mr Meyrick to file a further memorandum if he wished to put any further information before the Court, but no memorandum was filed and the Judge proceeded on the basis that Mr Meyrick was mistaken or the allegation was not relevant.[8]
[7]At [23].
[8]At [24].
On 19 November 2014 Mr Wood filed an application in this Court for an extension of time to appeal against Ellis J’s decision, which had been delivered on 9 April 2014. The application was served on Mr Glover on 24 November 2014.
In terms of r 14(2)(a) of the Court of Appeal (Civil) Rules the application was required to be filed and served within 20 working days of Ellis J’s decision, that is by 12 May 2014. It was therefore filed 155 days out of time and served 158 days out of time.
The relevant principles
The test for whether an extension of time to appeal to this Court should be granted under r 29A is set out in My Noodle Ltd v Queenstown-Lakes District Council.[9] The factors include the reasons for and length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay.[10]
[9]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518.
[10]At [19].
Further, this Court in Havanaco Ltd v Stewart said that an applicant for an extension of time is seeking an indulgence from the Court and the Court will not grant such an indulgence where the proposed appeal has no merit.[11] The ultimate test is whether granting the extension of time would meet the overall interests of justice.[12]
Application of the principles
[11]Havanaco Ltd v Stewart (2005) 17 PRNZ 622 (CA) at [22].
[12]At [5].
Mr Wood says that the reasons for the delays in filing and serving his application in this Court were outside his control, including not being informed by his lawyer about Ellis J’s decision, trying to get a retrial in the District Court first, seeking leave in the High Court to appeal the High Court decision, mistakenly filing the appeal to this Court in the High Court, and waiting for a hearing date before serving Mr Glover.
While these various reasons may go some way to explaining the delays, they do not excuse or justify them in full. Mr Wood knew from his experience in failing to file and serve his application for leave to appeal to the High Court in time that compliance with the time requirements of the relevant rules is important. We therefore do not accept that Mr Wood has adequately explained the reasons for his delays in complying with the time requirements of the rules of this Court which are designed to ensure that appeals and applications of this nature are pursued expeditiously in the interests of justice.
As far as the merits are concerned, Mr Wood made extensive submissions challenging the factual findings of Judge Blackie in the District Court. His particular focus was on:
(a)the veracity of two emails produced at the hearing purporting to authorise Mr Glover to repossess the vehicles; and
(b)Mr Glover’s own evidence under cross-examination that at the time he took the vehicles he had no authority from anyone to do so.
Mr Wood submits that the two emails were forgeries, not produced by Mr Glover on discovery and “ambushed” his case in the District Court.
Following the hearing of Mr Wood’s application, he provided at our request the notes of evidence taken before Judge Blackie. He also filed further submissions drawing attention to various passages in the notes which he said supported his case.
We have examined the notes of evidence. They show that:
(a)Mr Sanderson in the course of his evidence-in-chief produced one email authorising Mr Glover to organise the repossession of one vehicle. No objection was taken by Mr Wood’s trial counsel, Mr McKelvin, to the production of the email.
(b)In response to a question from Judge Blackie, Mr Sanderson confirmed that he had authorised Mr Glover to seize the vehicles from Mr Wood. Mr Sanderson was not cross-examined by Mr McKelvin on this evidence.
(c)Mr Glover in the course of his evidence-in-chief produced an email from Mr Sanderson authorising him to repossess the vehicles. Again no objection was taken to the production of the email.
(d)Mr Glover was cross-examined by Mr McKelvin about his authority to repossess the vehicles. While Mr Glover did acknowledge that he took the vehicles before he had authority from Mr Sanderson to do so, he also said that as soon as he had repossessed the vehicles (in order to have security for money owed to himself) he rang Mr Sanderson who gave him authorisation.
When the unchallenged evidence of Mr Sanderson is taken into account with the evidence of Mr Glover there is ample evidence to support Judge Blackie’s decision that Mr Sanderson was within his rights to seek the assistance of Mr Glover in taking possession of the vehicles.[13] While Mr Glover may have acted in advance of Mr Sanderson’s telephone authority, it was only for a very short period of time.
[13]District Court decision, above n 1, at [57].
In these circumstances we agree with Ellis J that Mr Wood’s proposed appeal is without merit. Our reasons are:
(a)The tort of conversion requires proof of unauthorised taking of possession of property, here the vehicles.[14]
(b)There is no dispute that at the relevant time the property in the vehicles was held by Sanderson Investments Ltd and not Mr Wood.
(c)On the evidence at the District Court trial Mr Sanderson authorised Mr Glover to take possession of the vehicles.
(d)Even if the impugned emails are put to one side, the evidence was that Mr Glover had been given the requisite authority by Mr Sanderson within a short period of time after the vehicles were repossessed.
(e)A technical conversion for a short period of time would not have supported an order for return of the vehicles when it is clear that at the time of the hearing Mr Glover had obtained the requisite authority from Mr Sanderson. If there was a conversion, damages would have been an adequate remedy, and they would likely have been for a nominal amount because the period of the conversion was fleeting.[15]
[14]Cynthia Hawes “Interference with Goods” in Stephen Todd (ed) The Law of Torts in New Zealand (6th ed, Thomson Reuters, Wellington, 2013) at [12.3.02(1)].
[15]At [12.4.03(1)-(2)].
We therefore do not consider the interests of justice favour granting an extension of time.
Result
The application for an extension of time is dismissed.
We see no reason why costs should not follow the event. We accordingly order that Mr Wood pay Mr Glover’s costs for a standard application on a band A basis with usual disbursements.
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