Scenic Developments Ltd v Kelmarna Properties Ltd [2004] NZCA 271; (2004) 17 PRNZ 489 (10 November 2004)

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Scenic Developments Ltd v Kelmarna Properties Ltd [2004] NZCA 271 (10 November 2004); (2004) 17 PRNZ 489

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA63/04CA153/04CA154/04CA155/04

BETWEEN SCENIC DEVELOPMENTS LIMITED
First Appellant

AND BERNARD TERENCE WHIMP
Second Appellant

AND KELMARNA PROPERTIES LIMITED
First Respondent

AND VANCOUVER HEIGHTS LIMITED
Second Respondent

AND FRANKTON HEIGHTS LIMITED
Third Respondent

AND GENERAL MORTGAGE NOMINEES LIMITED
Fourth Respondent

Hearing: 19 October 2004

Coram: Anderson P Hammond J William Young J

Appearances: D M Lester for Appellants
H D P van Schreven for Respondents

Judgment: 10 November 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1] We have before us two applications:

• The first application is for special leave to apply for an extension of time to appeal against two judgments of a procedural character which were delivered by John Hansen J on 11 March 2004 and 15 March 2004 respectively in CIV 2003-409-001781; and also to appeal against a costs ruling by the Judge in the same proceeding, which was delivered on 29 March 2004.
• The second application is for leave to adduce fresh evidence on the hearing of those appeals, if the first application is granted. It is made pursuant to r 24 of the Court of Appeal (Civil) Rules 1997.

[2] These applications are complicated by the fact that, in our view, the substantive appeal (which was filed timeously) has, in terms of r 10 of the Court of Appeal (Civil) Rules 1997, been abandoned. We will give our reasons for this view later in this judgment. It follows that this Court now has no jurisdiction to hear that appeal.
[3] This case has a messy and unfortunate history, but in the particular circumstances now arising, we can deal with the applications succinctly.

Background

[4] The litigation had its genesis in certain property dealings in Queenstown. The trial of the issues arising thereout was to come on for hearing in February of 2004. Timetabling orders and directions were given to advance the proceeding to that hearing. Unfortunately, there was marked non-compliance by the first appellants. There were also withdrawals of counsel for the appellants. In March of 2004 there was further non-compliance, this time with respect to orders for briefs. On 11 March 2004 John Hansen J made the first determination which is complained of, by making an “unless” order. Subsequently the Judge declined to reconsider that order, and the defence was struck out. That is the second matter complained of. On 16 March 2004 the Judge delivered judgment on the merits. Then, on 29 March 2004, costs went against the appellants, in the third of the judgments complained of. Then there followed the (timeous) appeal on the merits of the cause. Thereafter, the appellants’ case got into a procedural tangle, to which we now turn.

The application for special leave to appeal out of time

[5] This application comes about this way.
[6] It is common ground that a substantive appeal was filed (timeously) in this Court on 5 April 2004. By way of explanation, that appeal was allocated the number CA63/04.
[7] On 21 April 2004 the Court of Appeal Registry received an application for a stay. The Registry considered that since the stay application related to the judgment dated 16 March 2004, that this Court had jurisdiction. An application for determination of that application was scheduled for a Miscellaneous Motions list for 8 June 2004. On the application of counsel (by consent) a new fixture date was allocated for 14 July 2004.
[8] On 25 June 2004, amended appeal documents were forwarded by then counsel for the appellants, being an amended application for a stay; individual notices of appeal with respect to the decisions of 11, 15, and 29 March 2004; an application to adduce fresh evidence; and an application for extension of time for appealing the three decisions of John Hansen J given on the three dates in March 2004.
[9] The Registry returned the three new notices of appeal on 5 July 2004, on the footing that they were out of time, and that a leave application would first need to be dealt with.
[10] On 8 July 2004 Mr Shamy filed a memorandum requesting leave to withdraw as counsel. That file was minuted by McGrath J as follows:

Leave to withdraw is given. A conference call on that point is unnecessary. Mr Shamy is asked to do what he can to ensure the Court is properly informed of who will be acting next Wednesday, 14 July 2004 for the applicant on the stay application.

[11] On 12 July 2004 Mr Shamy advised the Court that the stay application set down for hearing on 14 July 2004 was in fact in relation to the judgment of 29 March 2004. It followed that under r 9 of the Court of Appeal (Civil) Rules, this Court did not have “jurisdiction” to hear this application, in the sense that as matters then stood the appeal against the ruling was out of time.
[12] The file was reviewed by Glazebrook J on 13 July 2004. The Judge issued a minute adjourning that matter accordingly.
[13] On 22 July 2004 Mr Shamy advised the Registrar that he was now re-instructed on the appeal as counsel for the appellant. It was shortly thereafter, on 27 July 2004, that the applications for leave were allocated new CA numbers (CA153/04, 154/04, and 155/04). These applications were set down for the next available Miscellaneous Motions list on 20 September 2004, along with the application to adduce fresh evidence. The various matters arising were finally argued before us on 19 October 2004, in the circumstances we will deal with in the next section of this judgment.

Rule 10 comes into play

[14] It is important to appreciate that r 10 of the Court of Appeal (Civil) Rules 1997 provides that:

10 Appeal abandoned if not pursued

(1) An appeal is to be treated as having been abandoned if the appellant does not, within 6 months after the appeal is brought, either -

(a) Apply for a fixture and file the case on appeal; or

(b) Apply for an extension of time for applying for a fixture and filing the case on appeal.

(2) On an application under subclause (1)(b), the Court may extend, by such period as it thinks fit, the time for applying for a fixture and filing the case on appeal, and may from time to time further extend that period while the proceeding is pending.

(3) This rule applies only to appeals brought on or after the date of commencement of these rules.

[15] The consequence of that rule was that the six-month period set out in the rule had been running since the filing of the substantive appeal (CA63/04), and would expire on 5 October 2004.
[16] This Registry has a practice - it is not required to do so by the rules - of reminding counsel of the running of the rule because, in terms, it treats the appeal as having been abandoned if the rule is not complied with.
[17] The Registry sent a letter to Mr Shamy on 2 September 2004 reminding him of the passage of time for r 10 purposes. A reminder fax was also sent to Mr Shamy as to the filing date for the appellant submissions, which were due on 8 September 2004.
[18] On 3 September 2004 Mr Shamy asked for leave to withdraw as counsel. That application was allowed by the President on 8 September 2004.
[19] On 9 September 2004 Mr Whimp, for the second appellant, contacted this Court indicating he would need to seek new counsel. On 16 September 2004 McGrath J adjourned the hearings to a date to be determined by the Registry. A time was allocated for the 19 October 2004 Miscellaneous Motions list.
[20] In the meantime, the Registry had considered the matter further, and on 5 October 2004 a formal notice of abandonment was given by the Registrar of this Court.
[21] Notwithstanding that notice of abandonment, we heard counsel so that they could make (inter alia) any submissions they saw fit to advance as to the (now) standing of all the various appeals.
[22] As to r 10, the problem arising in this case has been considered on a prior occasion by this Court, and determined in a way which is insurmountable by the appellants. That authority is Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29. We refer in particular to pages 30-32. This Court said:

The appeal was filed on 16 December 1997 against reserved judgments of Randerson J delivered in the High Court at Auckland on 6 and 26 November 1997. The application for an extension of time was made on 12 June 1998 and thus within the six-month period.

The new rule implements the philosophy that once a matter has been the subject of a determination in the High Court any party wishing to challenge that determination by an appeal to this Court must do so expeditiously or forfeit the right to pursue the appeal. It is thus required of appellants that they should have the case on appeal prepared and lodged within six months of the filing of the appeal and an application for a fixture made to the Registrar of this Court within the same period.

Recognising, however, that sometimes there may be good reason to give an appellant a longer period to prepare for the hearing of the appeal, the Court is empowered to extend the period on one or more occasions provided that the appellant continues to be willing to pursue the appeal speedily and demonstrates that willingness by applying to the Court within the time allowed for an extension. The appellant in so doing brings the further progress of the appeal within the control of the Court.

Where an appellant does not prior to the expiry of the six-month period bring such an application, the Court lacks any power to extend time under R 10 and the appeal is deemed abandoned (see also in this context R 27). It may in theory be possible for such an appellant to begin again by bringing another appeal by special leave under R 5, but after a first appeal has been deemed abandoned under R 10, that power is unlikely to be exercised save in exceptional circumstances. (Emphasis added.)

[23] Since no application for an extension of time was made in the six-month period this Court lacks any power to extend time under r 10 with respect to the merit appeal, and the applications for special leave, which are necessarily dependant on the merit appeal still being alive, are fruitless. There is the theoretical possibility of pursuing a further appeal with special leave, as mentioned in Airwork and Mr Lester orally sought such leave before us. Without necessarily endorsing the possibility in theory, we indicate that we would not be disposed to grant such leave in any event. Our reasons are set out later in this judgment.
[24] Mr Lester said all that he could as to the position in which the appellants find themselves. But what is involved here is a question of jurisdiction. We are not disposed to revisit the decision in Airwork. Rule 10 is plain in its terms, and had been the subject of an authoritative, reported decision of this Court which is also noted in the various standard reference works on civil procedure in New Zealand. And counsel must have been aware that time was running under r 10, given the explicit reminders from this Court.
[25] Further, it has to be said that it is the appellants’ own dilatoriness in advancing their cause throughout which has led to the predicament in which they find themselves. That dilatoriness was evident in the High Court, and the same problem has manifested itself in this Court.
[26] The underlying substantive appeal having been terminated by statute, there is nothing for the other applications which are before us to rest upon. On this basis alone the present applications for special leave must be dismissed.
[27] We add some short comments, as a matter of caution, with respect to the costs ruling which is, at least formally, complained of. We use the term “formally” advisedly, because nothing further was said about this matter in argument before us. If the merit appeal has (as we have held) been abandoned it may be arguable that the costs issue is now also moot. However, even if that were not so, the appellant always faced the difficulty in this Court, that it is most unusual for this Court to entertain a costs appeal. The orders made - so far as they were made - appear to be quite unexceptional.

Discretionary considerations

[28] Even if we had jurisdiction to consider these applications, as a matter of discretion we would still have dismissed them. These same views would apply even if a fresh application for leave were to be made. We indicate briefly why this is so.
[29] First, on a leave application, what is being sought is an indulgence. As Mr van Schreven correctly said, we are required to have regard to the whole of the circumstances of the case (see Avery v No.2 Public Service Appeal Board [1973] 2 NZLR 86; and Williams v Allott & Ors (2001) 15 PRNZ 684). The appellants have throughout the unfortunate history of this litigation continually failed to comply with timetabling orders and directions; and have had counsel in the proceedings in and out of them continually, with a disruptive and delaying effect on the proceedings. Their conduct disentitles them to an indulgence.
[30] Secondly, in relation to the application to adduce fresh evidence, as we apprehend it all of the evidence sought to be advanced was available at the time of the trial of the proceedings. It therefore does not comply with the very first requirement for further evidence, namely that it be “fresh”.
[31] Thirdly, there is real force in Mr van Schreven’s argument that the substantive appeal would be doomed to failure in any event because, by reason of subsequent events, it would now be largely meaningless. The mortgage which founded the basis on which General Mortgage Nominees Limited exercised its power of sale, and thus sold to Scenic Developments Limited, has been repaid and discharged. In practical terms it is not possible for Scenic Developments Limited to revert now to its agreement for sale and purchase. The appellants are faced with the difficulty that, at the appropriate time, they did not seek a stay of proceedings.

Conclusion

[32] All the applications before us are dismissed.
[33] The respondents will have a sum of $3,000 for costs against the appellants (on a joint and several basis) together with their reasonable disbursements. Those disbursements are to include the travel and accommodation expenses of counsel for the respondents. If the disbursements cannot be agreed they are to be fixed by the Registrar.

Solicitors:
Kearney & Co, Christchurch for Appellants
Clark Boyce, Christchurch for First Respondent