YULIYA BATUSOVA AND MARTIN PHILIP DREW

[2024] NZHC 2932

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-001387

[2024] NZHC 2932

BETWEEN

YULIYA BATUSOVA

Applicant

AND

MARTIN PHILIP DREW

Respondent

Hearing:

2 October 2024

Appearances:

Applicant in Person

J Cartwright for Respondent

Judgment:

10 October 2024

JUDGMENT OF VENNING J

[Application for leave to appeal out of time]

This judgment was delivered by me on 10 October 2024 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Henderson Reeves, Whangarei Copy to:  Applicant

BATUSOVA v DREW [2024] NZHC 2932 [10 October 2024]

Introduction

[1]    On 3 July 2019, Judge I McHardy delivered a substantive relationship property judgment dealing with the claim and cross-claims of Martin Drew and Yuliya Batusova.1 On 23 December 2019, Judge McHardy issued a costs judgment.2 Costs were subsequently quantified in accordance with the judgment although the costs order was not sealed until 8 February 2023.

[2]    The time for filing an appeal from the substantive judgment expired on 31 July 2019 and from the costs judgment on 12 February 2020.

[3]    On 11 June 2024, approaching five years after the time for appealing as of right from the substantive judgment, Ms Batusova brought this application for leave to appeal both judgments.

Family Court judgment

[4]In his judgment the Judge made various rulings, including that:

(a)the value of 8B Oban Road, (where Ms Batusova was living) was fixed at $1,050,000;

(b)Ms Batusova was to have 21 days from the date of the judgment to put an unconditional offer to purchase the property to Mr Drew;

(c)the purchase price of the agreement was to be calculated as follows:

(i)$525,000 – being half the value of the family home;

(ii)less $46,948.63 being half an outstanding mortgage to Westpac;

1      Drew v Batusova [2019] NZFC 3722.

2      Minute/Directions of Judge I McHardy, dated 23 December 2019.

(iii)less an adjustment to be made in favour of Ms Batusova in terms of rulings that follow;

(iv)plus any adjustment directed in favour of Mr Drew in rulings that follow;

(v)settlement was to be in two weeks;

(vi)Mr Drew was to arrange for the removal of a caveat lodged on his behalf to enable settlement;

(vii)if Ms Batusova did not present an unconditional offer within 21 days or settle on the settlement date, Mr Drew had the right to cancel the agreement and the matter would be remitted back to the Family Court for the immediate issue of an order for sale and vacant possession; and

(viii)the net sale proceeds were to be divided between the parties subject to the adjustments that needed to be made.

[5]    The Judge then went on to make the adjustments and in doing so ruled on items of property at issue between the parties and amounts owed by Ms Batusova to Mr Drew,3 and by Mr Drew to Ms Batusova.4 The adjustments in Mr Drew’s favour totalled $152,367.87 and the adjustments in favour of Ms Batusova totalled

$26,108.03.

Events following the judgment

[6]    Ultimately, Ms Batusova did not make an offer to purchase 8B Oban Road. Mr Drew then attempted to proceed with the sale of the property as contemplated by the judgment. However, he was unable to do so however because of a caveat lodged by Ms Batusova’s son, Evgenv Batusova (known as John Batusova).

3      At [105]–[121].

4      At [117]–[118].

[7]    The Judge had been aware of Mr Batusova’s claim to an interest in Oban Road because he noted in his judgment:

[123] The applicant [Mr Drew] accepts that John Batusova did lend him and the respondent [Ms Batusova] US$23,000. There is nothing in writing before the Court which supports the contention that there was a joint venture agreement. Irrespective of this, John Batusova is entitled to repayment of US$23,000 plus interest. One would expect that there could be an agreed position in respect of repayment to him of this money. However neither he nor the respondent [Ms Batusova] could expect resolution of that issue in these proceedings. If there is no resolution then he has his remedies available to him.. The same applies to any argument John Batusova might consider he has as to the existence of a joint venture. The same applies to other third parties such as the applicant’s parents.

[8]    Mr Batusova claimed an interest in 8B Oban Road on the basis of a constructive trust. On 24 June 2019, after the hearing in the Family Court, but before the judgment, he lodged a caveat against 8B Oban Road. In the subsequent caveat proceedings in this Court, while a Judge expressed doubts about Mr Batusova’s claim for a joint venture, he considered there was a reasonably arguable case for a constructive trust and ordered the caveat not lapse.5 In December 2019, Mr Batusova issued substantive proceedings claiming a constructive trust against the property. Mr Batusova’s claim (supported by Ms Batusova) was scheduled to be heard on 8 July 2024. Ultimately those proceedings were settled on terms which enabled the sale of 8B Oban Road.

Application for leave

[9]    Ms Batusova, acting for herself, now seeks leave to appeal both the substantive and costs judgments of Judge I McHardy out of time. Ms Batusova’s application for leave is discursive and the grounds extensive. In her application, Ms Batusova says:

a.There are material errors in the judgment that have caused, or which are likely to cause a miscarriage of justice including that:

i.The Family Court considered the evidence and made various decisions in relation to a Family Trust of the parties and its affairs, which was outside the jurisdiction of the Family Court or which should not have been considered or given any weight by the Court in determining relationship property matters between the parties;

5      Batusova v Batusova [2020] NZHC 1272, at [55] (caveat judgment).

ii.Family Court incorrectly determined that the applicant should pay compensation to the respondent under s 18C of the Property (Relationships) Act for her refusal to sell properties when those properties were owned by the Family Trust, such decisions were made in good faith by the applicant in her capacity as trustee and the properties were not relationship property;

iii.Not all significant assets and liabilities were accounted for by the Family Court, failing to achieve an equal property division.

iv.The Family Court made an incorrect assessment of the financial situation at separation without reliable information as Drew Family Trust's annual financial statements were not completed by the time of Family Court hearing;

v.Family Court allowed the respondent to file a Supplementary Bundle of documents at the hearing which was highly prejudicial to the applicant as a lay litigant and meant she was unable to obtain any reply evidence or call any witnesses in relation to the matters covered in the Supplementary Bundle including evidence purporting that the family home was tenantable or had a market rent and evidence of a debt and the amount repaid to the respondent's parents;

vi.Family Court incorrectly recorded that the applicant introduced own bundle of documents at the hearing when, in fact, it was the respondent who introduced their supplementary bundle at the hearing;

vii.The Family Court incorrectly made a blanket assessment of credibility that was prejudicial to the applicant and which was based on misleading or inaccurate evidence given by the respondent;

viii.The applicant was not given the opportunity to make submissions on the evidence given in the Family Court, which was prejudicial and unfair to the applicant;

ix.The Family Court incorrectly ordered the applicant to pay occupation rent in relation to the family home when the property could not be rented as it was known to be leaky and/or suffered from weathertight issues and/or presented serious health hazards to any tenant;

x.The respondent has given evidence both to the Family Court and the High Court, since the hearing in the Family Court, that is inconsistent with the evidence he gave to the Family Court at the hearing on certain matters and which undermines his credibility and which undermines the prejudicial findings made about the applicant in the judgment;

xi.The respondent has further filed a Brief of Evidence in High Court that is inconsistent with the evidence he gave to the

Family Court at the hearing on certain matters and which undermines his credibility and which undermines the prejudicial findings made in relation to the applicant in the judgment;

xii.The applicant has obtained correspondence showing that the respondent acted in a manner that is contrary to the Family Court's view that the respondent dealt "with the property division in an honest upfront way".

1.The applicant has obtained documentary evidence instructing the trust's solicitors not to accept the applicant's offer to buy the trust's property at 8A Oban Road, which was denied by the respondent in Family Court.

xiii.The applicant has obtained documentary evidence that the respondent engaged in actions towards the applicant (by conspiring with staff to lure the applicant away from the family home to a bogus meeting, to bring a truck and remove relationship property without applicant's knowledge or consent) which are contrary to the Family Court's view that the respondent dealt "with the property division in an honest upfront way";

xiv.The applicant has obtained documents showing that she took steps to arrange the sale of all real estate properties, which undermines the respondent's narrative and the parts of the judgement where it is stated that the applicant resisted sales of all properties.

xv.The Family Court incorrectly valued shares of Tradefloor Limited;

xvi.The applicant has obtained documents that contradict the evidence the respondent gave to the Family Court at the hearing in relation to Tradefloor Limited and Tradeflooring NZ Limited which undermine the respondent's credibility and the findings made in favour of the respondent.

[10]   In her supporting affidavit and submissions Ms Batusova says Mr Drew misled the Family Court that he did not receive any income from a business of Tradefloor Limited (Tradefloor). She says the Family Court erred in denying an adjustment in her favour for income from the businesses earned after separation. Ms Batusova also submitted Mr Drew’s evidence was not credible as he took shareholder’s salary after separation when he gave evidence his income was devastated.

[11]   The parties had at once stage owned four other properties in addition to the Oban Road property. Despite the fact those investment properties had been sold prior

to the Family Court hearing, pursuant to an agreed settlement, Ms Batusova says the Family Court’s conclusions about them were based on a wrongful premise that the various property purchases were structured in a way as to ensure the debt incurred was able to be serviced by the rentals from the properties and income from the companies. Ms Batusova wishes to submit that if the properties had remained tenanted as she proposed until there was an agreement or Court decision to sell them the situation would have continued and the sale proceeds would have been higher. Further, on the winding up of the family trust additional equity of $141,132 would have been available for distribution. She says the Family Court mistakenly assessed the cause of the property portfolio collapse. It was the respondent’s objection to re-tenanting of the properties that caused the net rental losses and nothing that she had done caused the loss.

[12]   Ms Batusova also submitted Mr Drew had misled the Family Court as to the sequence of events which led to an application by the independent trustee to remove Mr Drew and her as trustees.

[13]   Ms Batusova wishes to argue that the Family Court did not take account for all relevant liabilities, specifically a significant debt owed by the Drew Family Trust to Northland Business Systems Limited (NBS) of $193,859. Again, prior to the Family Court hearing it had been agreed that Ms Batusova was to purchase NBS for an agreed price.

[14]Ms Batusova also takes issues with the Judge’s findings that:6

There is an abundance of evidence to demonstrate that [Mr Drew] was trying to resolve matters amicably and that his actions were not illustrative of a person who wanted to take an unfair advantage over [Ms Batusova].

[15]   She submitted the Family Court erred in its assessment that Mr Drew’s actions were not illustrative of a person who wanted to take an unfair advantage over her and in its finding that:7

The evidence is that [Mr Drew] tried to deal with the property division in an upfront way.

6 At [84].

7      Drew v Batusova, above n 1, at [85].

[16]   Next, she took issue with the Judge’s findings that her actions of freezing the bank account and allegedly sequestering the van and tools and stock were against Tradefloor, and also erred in its valuation of Tradefloor as nil as at the date of the hearing when it had previously been valued at $56,000.

[17]   Ms Batusova wishes to submit the Family Court erred in ordering adjustments in Mr Drew’s favour for the value of items that he said were left in the various properties but which she says were in fact removed by him.

[18]   Ms Batusova wishes to argue the Family Court took into account irrelevant and misleading statements regarding the alleged debt to Mr Drew’s parents and made adverse credibility findings as against her based on misleading statements by Mr Drew. She also wishes to argue that Mr Drew’s evidence in the Family Court is inconsistent with his evidence in the subsequent High Court proceedings.

[19]   Ms Batusova next says the Judge was wrong to order occupation rental in favour of Mr Drew of $45,576, when that was not the figure that she had advanced on two separate rental appraisals.

[20]   Finally, she submitted that she had been denied the opportunity to point out inconsistencies in Mr Drew’s evidence in her submissions.

[21]   It is apparent that Ms Batusova’s intended appeal is wide ranging to say the least. Ms Batusova wishes to challenge a number of the factual findings of the Family Court.

[22]   Despite the extensive grounds and submissions in Ms Batusova’s application, affidavit and submissions, directed at the merits of the decision, her explanation for the delay in seeking leave to appeal is much more limited. Ms Batusova’s focus was and remained on what she perceived to be the merits of the appeal.

Principles

[23]   The leading appellate authority on applications for leave to appeal out of time are the decision of the Supreme Court in Almond v Read and the Court of Appeal

decision in My Noodle Ltd v Queenstown-Lakes District Council.8 Also, in W v W, a case Ms Batusova referred to in her oral submissions, the Court of Appeal applied the principles in Almond v Read in the context of a relationship property dispute.9

[24]   In Almond v Read the Supreme Court reviewed the background to the development of the rule in the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal before concluding:10

[38]      The ultimate question when considering the exercise of the discretion to extend time under r 29A is what the interests of justice require. That necessitates an assessment of the particular circumstances of the case. Factors which are likely to require consideration include:

(a)The length of the delay. Clearly, the time period between the expiry of the appeal date and the filing of the application to extend time is relevant. But in a case where there has been a slip-up and the appeal date has been inadvertently missed, how quickly the applicant sought to rectify the mistake after learning of it will also be relevant. Obviously, the longer the delay, the more the applicant will be seeking an “indulgence” from the court and the stronger the case for an extension will need to be.

(b)The reasons for the delay. It will be particularly relevant to know whether the delay resulted from a deliberate decision not to proceed followed by a change of mind, from indecision, or from error or inadvertence. If from a change of mind or from indecision, there is less justification for an extension than where the delay results from error or inadvertence, particularly if understandable.

(c)The conduct of the parties, particularly of the applicant. For example, a history of non-cooperation and/or delay by an applicant may be relevant.

(d)Any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome. Again, the greater the prejudice, the stronger the case will have to be to justify the grant of an extension of time. Where there is significant delay coupled with significant prejudice, then it may well be appropriate to refuse leave even though the appeal appears to be strongly arguable.

(e)The significance of the issues raised by the proposed appeal, both to the parties and more generally. If there is a public interest in the issues, the case for an extension is likely to be stronger than if there is no such interest.

8      My Noodle Ltd v Queenstown-Lakes District Council (2009) 19 PRNZ 518 (CA).

9      Almond v Read [2017] NZSC 80; and W v W [2022] NZCA 512.

10     Almond v Read, above n 9, (footnotes omitted).

[39]      We accept that the merits of a proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time. This is because there will be occasions on which the court will risk facilitating unjustifiable delaying tactics on the part of dilatory or recalcitrant litigants if it does not consider the merits. There are three qualifications to this principle, however:

(a)There will be some instances in which the merits or otherwise of a proposed appeal will be overwhelmed by other factors (such as the length of the delay and the extent of the prejudice to the respondent or others) and so will not require consideration.

(b)As we have already indicated, the merits will not generally be relevant in a case such as the present where there has been an insignificant delay as a result of a legal adviser’s error and the proposed respondents have suffered no prejudice (beyond the fact of an appeal). As we noted above, r 29A differentiates between cases where the respondent consents to the extension and those where it does not, giving the Court broader powers in the former case. In cases of this type, respondents are generally best advised to consent to an extension to enable the appeal to be determined promptly. The delay which has occurred in final determination of this case could have been avoided had the respondents given their consent and has been to no one’s benefit. A respondent who does not consent in such a case runs the risk of an adverse costs award.

(c)Consideration of the merits of an appeal in the context of an application to extend time must necessarily be relatively superficial. In this connection, we agree with the observations of the Court of Appeal of England and Wales in R (Hysaj), to the effect that the court should firmly discourage much argument on the merits and should reach a view about them only where they are obviously very strong or very weak. Moreover, any assessment of the merits must take place against the background of this Court’s description of the nature of a general appeal in Austin, Nichols. Accordingly, a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. An appeal would be hopeless, for example, where, on facts to which there is no challenge, it could not possibly succeed, where the court lacks jurisdiction, where there is an abuse of process (such as a collateral attack on issues finally determined in other proceedings) or where the appeal is frivolous or vexatious. The lack of merit must be readily apparent. The power to grant or refuse an extension of time should not be used as a mechanism to dismiss apparently weak appeals summarily.

[25]   In My Noodle Ltd v Queenstown Lakes District Council the Court of Appeal had identified the same issues approved subsequently by the Supreme Court in Almond v Read as the relevant considerations on an application for leave.

Analysis

[26]   Before considering the relevant factors, there is a preliminary point. After the hearing Ms B sought to file a document headed “oral submission in reply for hearing on 3 October”. Mr Cartwright objected to its admission. I uphold the objection. Ms Batusova had the opportunity to reply orally during the hearing and did so. As noted, prior to the hearing she filed extensive submissions, mainly directed at the merits of the proposed appeal. Her accompanying affidavit also effectively contained further submissions. The proposed reply document was simply more of the same.

The length of the delay

[27]   This is not like Almond v Read where there was a slip-up and the appeal date had been inadvertently missed with the applicant seeking to rectify the mistake almost immediately. As the Supreme Court noted, the longer the delay the more an applicant such as Ms Batusova will be seeking an indulgence from the Court and the stronger the case for an extension will need to be.

[28]   In W v W the Court of Appeal described the delay of five months as moderate. Nevertheless, in the particular circumstances of W v W the Court was prepared to find that the overall interests of justice, particularly the adverse factual findings made by the Family Court Judge against Ms W supported leave. The Court of Appeal described the Family Court Judge’s findings in that case against Ms W on credibility as excoriating. The appeal was allowed and Ms W was granted an extension of time to appeal the decision.

[29]   The particular circumstances of that case which led to the Court coming to that view were that the Judge in the Family Court had been influenced by the suggestion Ms W had altered an ACC form. The Judge referred the matter to the Police and Ms W was ultimately charged with perjury. Although she was initially convicted and her first appeal against conviction failed, Ms W was granted leave to bring a second appeal against conviction which was ultimately successful and her conviction set aside.

[30]In the course of its decision the Court of Appeal reasoned:11

[65]      We have concluded that the High Court Judge erred in his consideration of Ms W's application. In our view, the delay was a moderate one that was adequately explained by the traumatic effect of the substantive Family Court judgment on Ms W. Her change of mind following receipt of the costs judgment was explicable in that context. The conduct of the parties, for the purposes of considering an extension of leave to appeal, was neutral. There was no discernible prejudice from the delay itself. The merits of the proposed appeal were not so obviously strong or weak as to justify consideration of them in any detail.

[66]      We therefore step back and consider the overall interests of justice in this case. Self-evidently, achieving finality between the parties in this matter is an important consideration. Mr W and Ms W have been separated for more than 15 years. They have both suffered in the ongoing litigation. Their children have become adults against that backdrop. If an extension of time were granted, the litigation would resume in the High Court and it is unlikely that a final outcome would be reached for another year, assuming there was no further appeal. These considerations tell against allowing the appeal.

[67]      Yet the findings made by the Family Court Judge were unusually strong, even in a forum where strong adverse credibility findings are not uncommon. Ms W has experienced serious reputational damage and financial loss as a result of the Family Court decision. There are natural justice issues in relation to the setting aside of the 2006 agreement. In the absence of any real prejudice resulting from the delay in bringing the application for an extension of time, we consider that the interests of justice meant that the application should have been granted.

[31]   In Lee v Whangarei District Council Wylie J described an eight and a half month delay as “inordinate” and “grossly out of time”. 12 Similarly, in Clark v Ngati Karewa, an eight-month delay was described as “hopelessly out of time”.13

[32]   The delay in Ms Batusova’s case is extreme. It is not a matter of months. It is a matter of well over four years, almost five years since the delivery of the substantive judgment. Ms Batusova is seeking an indulgence. For leave to be granted in such a case the explanation for delay would need to be compelling.

The reasons for the delay

[33]   In her substantive submissions in support, Ms Batusova referred to the following reasons to explain her delay in filing the appeal:

11     W v W, above n 9.

12     Lee v Whangarei District Council [2014] NZHC 1002.

13     Clark v Ngati Karewa CA112/04, 14 September 2004.

(a)the caveat removal proceedings in the High Court which took up her time;

(b)the constructive trust proceedings which were only settled on 8 July 2024, which again took up much of her time, including full discovery;

(c)costs. Mr Drew had claimed costs over and above what had been allowed on a 2B scale and as a result the costs amount was not finalised until 2023;

(d)the financial assessment hearings for the costs judgment. She was involved in multiple hearings that took up her time between October 2023 and March 2024; and

(e)the adjustments matter. In October 2023 Mr Drew applied to Judge McHardy for clarification whether the adjustments order could be enforced before Oban Road was sold. On 31 October the Judge issued a directions order confirming that the adjustments order was not conditional on the sale of 8B Oban Road and that interest at five per cent applied from 3 July 2019. Ms Batusova successfully appealed that decision (in part).14

[34]   Dealing with each of those reasons in turn, the suggestion that Ms Batusova was distracted by the need to deal with the caveat proceedings and the constructive trust proceedings is not an adequate explanation for her failure to lodge an appeal or to lodge an application for leave to appeal. Both sets of proceedings were commenced in 2019. Although Ms Batusova had an interest in 8B Oban Road she supported her son in the proceedings and swore an affidavit. The issues raised in those proceedings were directly relevant to the property at 8B Oban Road, the orders in relation to which formed the substantial part of the Family Court judgment. The effect of the Family Court judgment must have been at the forefront of Ms Batusova’s mind. There was no reason why Ms Batusova could not have filed her appeal or application for leave during the currency of those proceedings.

14     Batusova v Drew [2024] NZHC 1580.

[35]   While it took some time for the costs order to be sealed, as Mr Cartwright submitted, as early as 3 December 2019, Ms Batusova had filed a memorandum in response to the costs memorandum filed by Mr Drew’s solicitors, attaching a copy of the schedule as to costs and submitting the costs award should amount to $35,673.86. The Judge’s decision on 23 December 2019 was that Mr Drew was to have costs on a 2B scale to be fixed by the Registrar. Ultimately the costs sought were reduced to

$40,842.93 as at 29 January 2020 even though the order was not sealed until 8 February 2023 when Mr Drew began to take enforcement proceedings. Ms Batusova was able to respond to the costs issue in December 2019 and could have, at that time filed an appeal against the costs order. There is no explanation for her failure to file an appeal when the costs order was ultimately sealed on 23 February 2023. At around that time, Ms Batusova had been in communication with the Registrar, challenging the costs.

[36]   Next, Ms Batusova refers to the financial assessment hearings for the costs judgment which took up her time from October 2023 to March 2024. Self evidently that does not explain the delay prior to October 2023, which was itself over four years by that time.

[37]   Similarly, while Ms Batusova refers to the further judgment of the Family Court regarding enforcement of the adjustment orders, she took an appeal against that decision on 16 November 2023. Again, there is no adequate explanation why she did not seek leave to appeal the substantive judgment at that time (even though by then four years would have passed).

[38]   In her affidavit and the original application Ms Batusova refers to a number of additional matters as providing reasons for the delay:15

(a)workload – she works as a laboratory technician, including night shift, and Covid increased her workload;

(b)she is a director of NBS;

15     Although Ms Batusova also filed a reply affidavit she focused entirely on the merits issue in that reply.

(c)lack of accessible advice/lack of funds, even though she is above threshold for legal aid;

(d)information gathered after the substantive judgment (apparently a reference to the evidence in the other proceedings);

(e)she has been dealing with pretrial issues regarding finances;

(f)bereavement – she only learned on 17 February 2022 that her mother had died some time before (apparently in September 2015).

[39]   Mr Cartwright makes the fair point Ms Batusova’s affidavit provides no information about the length of hours that she was working. Again, her work commitments did not prevent her from participating in other proceedings. Further, the first Covid-19 case in New Zealand was in late February 2020, some seven months after the right to appeal the decisions had expired. While Ms Batusova has a fulltime job it is obvious that it cannot be the case that she did not have time within the four year, almost five year period, to file an appeal or lodge an application for leave to appeal because of her work commitments.

[40]   Next, Ms Batusova refers to a number of approaches she made to lawyers who were either too busy or too expensive to assist her . However, importantly, she did take advice from a Family Court lawyer, a Mr Phillips, regarding the judgment and her appeal rights immediately after the Family Court judgment. Mr Phillips communicated with Mr Drew’s solicitors on 12 July 2019. In the letter Mr Phillips referred expressly to considering the Family Court judgment and noted that: “[Ms Batusova] has asked me to assist her in an appeal”. Mr Phillips’ letter went on to note there was enough in his opinion to seek and be granted a rehearing at least in part. He suggested a miscarriage of justice may have arisen and suggested a compromise. It is clear that within the relevant appeal period Ms Batusova had access to legal advice. Even if she lacked funds to continue to instruct Mr Phillips she could have lodged the appeal herself, as indeed she did when she challenged the Judge’s decision on the enforcement issue.

[41]   Although it is difficult to ascertain precisely the matters Ms Batusova refers to as “the further information” gathered after the substantive judgment, there is no suggestion how or why that explained the delay.

[42]   Learning of her mother’s death after the event, while a matter of distress which may have distracted her for a period of time, occurred well after the time for appealing was past. Further, while she says she could not concentrate on paperwork for some time, (after February 2022), by February 2023 she was communicating extensively with the Registrar regarding costs.

[43]   In short, the reasons for the extensive delay are woefully inadequate, even taken cumulatively.

The conduct of the parties, particularly of the applicant

[44]   For present purposes I accept the conduct argument is at best neutral from Ms Batusova’s point of view.

Prejudice

[45]   In W v W the Court of Appeal did not consider the fact the ultimate resolution of the proceedings would be further drawn out with further legal and associated costs as a prejudice arising from the delay as those consequences would follow if the appeal had been lodged within time

[46]   However, in this case, I note the parties, Mr Batusova, Ms Batusova and Mr Drew resolved Mr Batusova’s constructive trust proceedings on terms which will allow the property of 8B Oban Road to be sold. Further delay in finalising the enforcement of the Family Court judgment following the sale will be prejudicial to Mr Drew. Further, Mr Drew has taken steps and incurred expense seeking to enforce the judgment in reliance on the fact no appeal had been lodged.

Significance of the issues

[47]   There is no public interest in the issues that Ms Batusova wishes to raise. By contrast, the concept of finality of litigation is itself a proper public interest in this case which counts against leave being granted.

Merits

[48]   In Almond the Supreme Court noted the merits or otherwise of a proposed appeal will, in some instances, be overwhelmed by other factors such as the length of delay and extent of prejudice and so will not require consideration and if consideration of the merits are involved at all they necessarily must be relatively superficial.

[49]   In this case, I consider any merits in the numerous points that Ms Batusova wishes to raise are overwhelmed by the egregious delay which has not been satisfactorily explained.

[50]   To the extent merits are a consideration at all, I note that a number of the matters Ms Batusova proposes to advance are challenges to the credibility findings of an experienced Family Court Judge. At best, the merits of any appeal must be said to be neutral.

[51]   As to Ms Batusova’s criticism of a lack of natural justice, on the basis the Judge did not hear her submissions, I note that he recorded in some detail the submissions Ms Batusova had made to the Court.

Summary

[52]   Standing back and having regard to the above considerations the interests of justice in this case overwhelmingly come down in favour of declining the application for leave to appeal the judgments out of time. They do not support the applications for leave to appeal.

Result

[53]The applications for leave to appeal are dismissed.

Costs

[54]Costs to the respondent on a 2B basis.

Venning J