O'Leary v G E Custodians Limited [2011] NZCA 618 (5 December 2011)

Last Updated: 14 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA436/2010 [2011] NZCA 618

BETWEEN DION ANDRÉ O'LEARY Applicant

AND G E CUSTODIANS LIMITED Respondent

Hearing: 29 November 2011

Court: Arnold, Randerson and Stevens JJ

Counsel: No appearance for Applicant F B Collins for Respondent

Judgment: 5 December 2011 at 10 am

JUDGMENT OF THE COURT

A The application for an adjournment is dismissed.

2. The application for an extension of time to file a case on appeal and to apply for a hearing date is dismissed.

100. The applicant is to pay the respondent costs for a standard application on a band A basis plus usual disbursements.
     

REASONS OF THE COURT
(Given by Arnold J)

Background

[1] The applicant, Mr O’Leary, has applied for an extension of time to apply for a hearing date and to file the case on appeal. The matter was set down for hearing in the Miscellaneous Motions list on 29 November 2011. On 25 November 2011 the Registry received an email from Mr O’Leary which, among other things, sought an adjournment of the hearing.
[2] The background to the appeal is set out in this Court’s decision refusing Mr O’Leary’s application for a stay pending the hearing of the appeal.[1] It is sufficient for present purposes to say that G E Custodians Ltd (GEC) held a mortgage over a four hectare coastal property owned by Mr O’Leary, on which there were two rental properties. When Mr O’Leary defaulted on the payments under the mortgage, GEC issued proceedings against him in the High Court seeking vacant possession of the property and applying for summary judgment. Being satisfied that Mr O’Leary had no defence, Associate Judge Bell granted GEC’s application, thus enabling GEC to take possession of the property.
[3] Mr O’Leary filed an appeal against the Associate Judge’s decision on 8 July 2010. Under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules), Mr O’Leary was required to file the case on appeal and apply for a fixture within six months or the appeal was liable to be treated as abandoned. To apply for a fixture, Mr O’Leary needed to have paid security for costs or to have been released from that obligation. Mr O’Leary applied for a waiver from the requirement to pay security. The Registrar refused to grant a waiver but reduced the amount payable to $2,780. Mr O’Leary sought a review of that decision. Arnold J declined Mr O’Leary’s application for review and ordered that security be paid within 20 working days of 18 October 2010.[2] To date, security has not been paid.
[4] Mr O’Leary was entitled to apply for an extension of time to file the case and apply for a fixture within the six month period, or within three months of its expiry. On the last day of that additional three month period Mr O’Leary sent a letter to the Court which sought an extension of time. It was only brought to GEC’s attention in August 2011. This was because initially the Registry did not accept the application as the filing fee did not accompany it.
[5] Against this background, we address the two applications before us. Although Mr O’Leary did not appear either personally or through counsel at the hearing, he did file lengthy written submissions, which we have considered.

Application for adjournment

[6] This hearing has been fixed for some time. It concerns an application for an extension of time in respect of a time period that expired, taking the view most favourable to Mr O’Leary, in April 2011. As a consequence, there is a strong interest in having the application determined.
[7] Mr O’Leary has not advanced any real grounds to support his application to adjourn. Rather, he has pointed to a number of financial and other difficulties that he faces at the moment as a result of his situation in life and to the unfairness, as he sees it, of what has happened to him. However, the financial and other difficulties seem to be the same difficulties that caused him to fall behind in his mortgage repayments, precipitating GEC’s action to realise its security. While we sympathise with Mr O’Leary, that does not provide a proper basis for granting an adjournment. Other interests than his are engaged, including GEC’s interest in knowing where it stands and the public interest in the timely resolution of litigation.
[8] Accordingly, we decline Mr O’Leary’s application for an adjournment.

Application to extend time

[9] Mr Collins for GEC opposed the application for an extension of time on the basis that Mr O’Leary had consistently failed to meet his obligations under the Rules and had failed to comply with Arnold J’s security for costs order. He submitted that Mr O’Leary had not provided any explanation for his failure to conduct the appeal diligently. Mr Collins also submitted that the appeal was without merit. In that context we note that Mr O’Leary has previously acknowledged that he had no defence to GEC’s claim, his real objective having been to obtain some form of mortgage holiday.
[10] As we see it, there are two critical points. The first is that the property has now been sold and the transaction has been settled. Mr O’Leary acknowledged before Associate Judge Bell that he had no defence to GEC’s claim. In these circumstances there is no point in Mr O’Leary pursuing an appeal against the making of the order for possession. Mr O’Leary says that the property deteriorated while under GEC’s control, so that GEC did not realise its proper value from the sale. If Mr O’Leary wishes to pursue that aspect, he will be able to do so in appropriate proceedings.
[11] The second point is that Mr O’Leary has not paid security for costs despite the earlier order of Arnold J. Presumably he is unable to do so. As a consequence, he is not entitled under the Rules to apply for a fixture and GEC is entitled to apply to have his appeal struck out.[3] From the material which we have, it seems improbable that Mr O’Leary will be in a position to meet his obligation to pay security in the near future.
[12] In light of these considerations, and given the delay to date, we see no point in granting Mr O’Leary an extension of time and decline to do so. As a consequence, Mr O’Leary’s appeal will be treated as abandoned.[4]

Decision

[13] The application for an adjournment is declined. The application for an extension of time within which to file a case on appeal and apply for a fixture is also declined. Mr O’Leary is to pay GEC costs for a standard application on a band A basis plus usual disbursements.

Solicitors:
Gibson Sheat, Lower Hutt for Respondent.

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[1] O’Leary v G E Custodians [2011] NZCA 430.
[2] O’Leary v G E Custodians [2010] NZCA 470.
[3] See r 37.
[4] Rule 43.