Yarrow v Westpac New Zealand Ltd

[2018] NZCA 601

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA594/2017
 [2018] NZCA 601

BETWEEN	PAUL STEVEN YARROW Appellant
AND	WESTPAC NEW ZEALAND LIMITED Respondent

Hearing:	17 September 2018
Court:	Kós P, Miller and Williams JJ
Counsel:	M A Corlett QC for Appellant R B Stewart QC and S L Hawksworth for Respondent
Judgment:	18 December 2018 at 4.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for the allocation of a hearing date is granted. 

BThe appellant is to file that application by 25 January 2019, whereupon the Registrar is to set the hearing down for hearing at the first available opportunity.

C        There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

1. Mr Yarrow was adjudicated bankrupt at the suit of the respondent, Westpac New Zealand Ltd, on 19 September 2017.[1]  He had an appeal as of right against that decision.  That appeal was duly filed on 17 October 2017.  Rule 43 of the Court of Appeal (Civil) Rules 2005 (the Rules) required application for a hearing date to be made within three months of the appeal being brought.  Owing to an error by counsel (not Mr Corlett QC) that step was not taken.  As a result the appeal was deemed abandoned.[2]  This, then, is an application under r 43(2) for extension of time to apply for a hearing date.

   [1]Westpac New Zealand Ltd v Yarrow [2017] NZHC 2261.

   [2]Court of Appeal (Civil) Rules 2005, r 43(1)

2. The following is clear.  First, that the error was made by counsel unfamiliar with appellate practice and rules.  Unaware of r 43(1), counsel deferred seeking a fixture in order to pursue the possibility of obtaining new evidence on appeal.  Secondly, the appeal itself, and the case on appeal, having been filed in time, and no stay having been sought, the respondent cannot point to any material prejudice.

3. What is less clear is whether the proposed appeal itself has any merit.  The essence of the appeal is said to be that the Westpac New Zealand Ltd misled the High Court by asserting that it and Westpac Banking Corp are separate entities, and failing to disclose that one of its two key witnesses was also a senior employee of the latter.  The former point is answered by the fact that the companies are separate entities, their legal relationship being governed by the Westpac New Zealand Act 2006.  The factual association between the New Zealand and Australian arms of Westpac is a matter of common knowledge, and it is not suggested Mr Yarrow or the Court was ignorant of that.  The underlying allegation is that Westpac Banking Corp (and therefore also Westpac New Zealand Ltd, according to Mr Yarrow) was aware of breach of fiduciary duty by other directors of the failed Yarrow group of companies in entering a lease in Australia, and that they had a duty to disclose that to Mr Yarrow before taking a personal guarantee from him.  That argument was comprehensively rejected by Associate Judge Doogue.[3]

   [3]Westpac New Zealand Ltd v Yarrow, above n 1, at [125]–[128].

4. Our clear impression is that the appeal is weak.  But it is not wholly unarguable.  And but for counsel’s error, it would in due course have been argued.  The decision of the Supreme Court in Almond v Read establishes that any consideration of the merits of an appeal must be superficial pre-hearing, absent exceptional delay or similar disentitling circumstance, and that appeals as of right ought ordinarily be heard by this Court.[4]  Almond v Read concerned r 29A, not r 43, but the principles it outlines apply to any interlocutory application for an extension of time where there is an appeal as of right.[5]

   [4]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39].

   [5]Kipping v Sharrock [2018] NZCA 289 at [12].

5. The delay here is not exceptional, and is attributable to counsel error.  Other steps in the appeal had been duly complied with.  The apparent slender merits of the appeal are therefore irrelevant to the merits of the application.

Result

1. The application for an extension of time to apply for the allocation of a hearing date is granted. 

2. The appellant is to file that application by 25 January 2019, whereupon the Registrar is to set the hearing down for hearing at the first available opportunity.

3. In the circumstances, there is no order for costs.

Solicitors:
Simpson Dowson Meggitt, Auckland for Applicant
Simpson Grierson, Auckland, for Respondent