Green v Kelly [2010] NZCA 398 (27 August 2010)

Last Updated: 31 August 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA276/2010 [2010] NZCA 398

BETWEEN MERVYN KELSEY GREEN
Applicant

AND BARBARA HARRIET KELLY
FRANK MILNE LESTER
Respondents

Hearing: 17 August 2010

Court: Arnold, Ellen France and Stevens JJ

Counsel: G C McArthur for Applicant
K J Patterson for Respondents

Judgment: 27 August 2010 at 9.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time is granted on the conditions set out in [15] of the reasons of the Court.
2. Costs are reserved.
   

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

[1] This is an application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal a decision of Associate Judge Doogue making an order granting Ms Kelly and Mr Lester, the respondents, possession of a property at Islington Terrace, Waihi and an associated oral decision to decline to admit supplementary evidence.[1]

Background

[2] The respondents are the registered proprietors of the Islington Terrace property. The applicant, Mr Green, is living in one of two units on the property. The previous owner, Mrs Lester, lived in the other unit. Mrs Lester was the respondents’ mother. She died in December 2006 leaving the property to the respondents. The respondents brought an action for ejection of the applicant as an unlawful occupier under Part 13, Schedule 2 of the Judicature Act 1908 and sought summary judgment.
[3] The applicant opposed summary judgment on the basis he has an interest in the land under the Property (Relationships) Act 1976 or otherwise has contributed to the property so as to give rise to a constructive trust. The applicant lodged a caveat against the title to the property in November 2007.
[4] The Associate Judge concluded the respondents were entitled to possession of the land. At present, all the applicant had was the right to go to Court to assert an equitable interest. This in turn might or might not result in a proprietary remedy. But until that point, the respondents as owners and registered proprietors had the present right to possession.
[5] Associate Judge Doogue accepted the applicant’s submission that the caveat should remain for now. He said the parties should sort out the remaining procedural issues to enable substantive proceedings on the underlying issues to be brought to a hearing quickly.
[6] The applicant has filed an application for an extension of time to appeal. The application is opposed. The respondents say that although the delay (at least in respect of that part of the appeal against summary judgment) is not extensive, the appeal is without merit. The respondents also say they are prejudiced because the applicant has resided in the property paying no rent or other outgoings since December 2006. In addition, the respondents are making payments in respect of a mortgage that was over the property.

Principles

[7] The authorities make it plain that the issue is whether an extension of time will meet the overall interest of justice. The Court will consider various factors. The relevant factors in this case are the length of the delay and the reason for it, the merits of the appeal and the extent of any prejudice flowing from the grant of an extension.[2]

Discussion

[8] The extension of time is needed in this case because the applicant’s lawyer attempted to file a notice of appeal in this Court on 25 February 2010, one day outside the 20 working days permitted by the Rules. The applicant explains in his affidavit that his lawyer made a mistake in excluding Auckland Anniversary Day from the definition of “working day”.
[9] The initial delay is accordingly minimal and explicable by counsel error. In My Noodle Ltd v Queenstown-Lakes District Council this Court said it would normally be quite sympathetic to an extension of time in these circumstances.[3] However, the present case is not fully within the situation referred to in My Noodle because here there was a further two months delay (until 28 April 2010) before the application for an extension of time was filed. That delay was apparently explained by delay in obtaining legal aid.
[10] We are somewhat hamstrung in terms of an assessment of the merits because of the paucity of material filed. However, we understand the applicant said he made contributions to the property on the basis that he would have a life interest leading to an interest as a constructive trustee. The argument is that this interest entitles him to a possessory right and not just a right to claim monetary compensation. In terms of the supplementary affidavit, it appears that provided greater particularity of the basis of the claim as constructive trustee.
[11] The respondents say the Associate Judge was correct to grant summary judgment. However, Mr Patterson accepted that one possible outcome of the substantive proceedings is that the applicant obtains a possessory right.
[12] In terms of prejudice to the respondents, the material before us suggests the applicant has offered to pay only $45 per week by way of rental while the respondents continue to pay all the outgoings on the property including the mortgage.
[13] It is highly unfortunate that, because of the way the case has proceeded, the matter is still unresolved nearly four years after the respondents’ mother’s death. That said, we have concluded that we should grant an extension of time. That is because the delay in filing the notice of appeal was minimal and is explained by counsel error. Further, this is not a case where we can say at this stage that the appeal is so lacking in merit that the applicant should not be granted an indulgence. We will however impose conditions to ensure that the matter moves forward promptly.
[14] The parties advised us that there was a stay application being heard in the High Court on the 24 August 2010. No doubt in that context the parties and the High Court will have explored the various concerns arising from the delays to date.

Disposition

[15] The application for an extension of time is granted on the condition that the applicant will, on or before 15 October 2010:

(a) File a notice of appeal;

(b) Pay the filing fee;

(c) Apply for the allocation of a hearing date; and

(d) File a case on appeal.

[16] The applicant is legally aided. We did not hear the parties on the costs implications of that in this case and so we reserve costs.

Solicitors:
Clark and Gay, Waihi for Applicant
Harris Tate, Tauranga for Respondents

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[1] Kelly v Green HC Tauranga CIV-2009-470-426, 27 January 2010.
[2] Barber v Cottle [2010] NZCA 31 at [6].

[3] My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) PRNZ 518 at [20].