Beattie v Premier Events Group Ltd [2011] NZCA 635 (9 December 2011)

Last Updated: 14 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA508/2011 [2011] NZCA 635

BETWEEN MALCOLM JAMES BEATTIE First Applicant

AND ANTHONY JOSEPH REGAN Second Applicant

AND CT NZ LTD Third Applicant

AND PARNELL PARTNERS GROUP LTD Fourth Applicant

AND SPORTS HOSPITALITY MANAGEMENT GROUP LTD Fifth Applicant

AND PARNELL PARTNERS GROUP (NZ) LTD Sixth Applicant

AND CARTAN GLOBAL LLP Seventh Applicant

AND PREMIER EVENTS GROUP LTD Respondent

Hearing: 20 October 2011

Court: Glazebrook, Arnold and Ellen France JJ

Counsel: J Eichelbaum for Applicants M D Pascariu for Respondents

Judgment: 9 December 2011 at 1 p.m.

JUDGMENT OF THE COURT

1. Leave to amend the application for extension of time for filing the notice to appeal is granted.
2. The application for an extension of time is granted subject to the conditions set out in [20] of the reasons of the Court.

100. The application for leave to adduce fresh evidence is dismissed.

4. Costs are reserved.
   

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] The applicants seek an extension of time for filing an appeal under r 29A of the Court of Appeal (Civil) Rules 2005. They wish to appeal against the decision of Wylie J that the respondent, Premier Events Group Limited (PEG), was entitled to serve the proceedings on two overseas companies (Cartan Tours Inc (Cartan Tours) and Sportsmark Management Group Ltd (Sportsmark)) without leave under r 6.27 of the High Court Rules.[1] The applicants also seek leave to amend their application for an extension of time and to adduce new evidence (under rr 19 and 45 of the Court of Appeal (Civil) Rules respectively). The applications for an extension of time and for leave to amend are opposed. The respondent abides the decision of the Court on the application to adduce new evidence.

Background

[2] In May 2010, PEG issued proceedings against two of its former directors, the first and second applicants, Messrs Beattie and Regan, and against various corporate interests established by Messrs Beattie and Regan.
[3] We do not need to set out the detail of the proceedings. At this point it is sufficient to say that PEG’s business involved providing travel and hospitality services for major sporting events worldwide. PEG’s claim relates to contracts it said it had secured or was close to securing in relation to the 2011 Rugby World Cup and 2012 Olympics. There are allegations of breach of fiduciary obligations by Messrs Beattie and Regan in relation to these contracts or contractual negotiations.
[4] Some time after the proceedings were filed, PEG sought to have service effected overseas on Cartan Tours and Sportsmark. On 7 March 2011, PEG filed an application pursuant to r 6.27 seeking joinder of Cartan Tours and Sportsmark or, alternatively, seeking leave pursuant to r 6.28 to serve out of New Zealand the amended statement of claim on Cartan Tours and Sportsmark. The application was opposed by the present applicants.
[5] We note here that r 6.27 sets out the situations in which an originating document may be served without leave. Rule 6.28 provides for service of an originating document with leave. A defendant served out of New Zealand who objects to the jurisdiction of the Court to hear and determine the proceeding may file and serve an appearance objecting to jurisdiction.[2]
[6] We understand that both Cartan Tours and Sportsmark have filed a protest to jurisdiction under r 5.49.[3]

The decision of the High Court Judge

[7] Wylie J addressed each of the matters raised by the present applicants in opposition to PEG’s application. For current purposes we need only note the conclusions reached by the Judge, namely, that PEG had not delayed unduly in bringing the application; there was nothing to support the claim the application had been brought for collateral purposes; the case against Cartan Tours and Sportsmark was arguable; and, as counsel for the present applicants had accepted, there was a connection between Cartan Tours, Sportsmark and what it is alleged had occurred in New Zealand.
[8] Wylie J concluded r 6.27(2)(h)(i) applied so service could be effected without leave. In terms of that rule, service may be effected without leave when any person out of the jurisdiction is a “necessary or proper party to proceedings properly brought against another defendant” and there is “a real issue between the plaintiff and that defendant that the court ought to try”.

The application for an extension of time

[9] The overall test in determining whether to grant an extension of time to appeal is whether the extension of time is in the interests of justice.[4] The relevant considerations in that inquiry include the length of delay, reasons for delay, the extent of prejudice caused by the delay, the prospective merits of the appeal and the parties’ conduct.
[10] We deal with each of these considerations in turn. However, we first address one of the grounds of opposition raised by the respondent, namely, that this Court has no jurisdiction to deal with the appeal because the decision was an interlocutory one not appealable under s 66 of the Judicature Act 1908. In a decision delivered subsequently to the hearing before us, the Supreme Court has made it clear there is jurisdiction to hear the proposed appeal under s 66.[5]
[11] The length of the delay in filing the application for an extension of time is 20 working days. That is not particularly significant. However, we agree with the respondent that the delay is not adequately explained. The applicants rely on settlement discussions between the parties but these commenced after the expiry of the date for filing the appeal. The applicants also say it was not until Wylie J issued a judgment and corrigendum on 16 and 18 August 2011 in these proceedings that it became clear to them the Judge was operating under a misapprehension about the respondent’s knowledge of dealings between the overseas companies and the New Zealand interests, a point relevant to delay in filing the application for service. However, the applicants’ proposed substantive appeal on this issue is based on the argument the Judge was mistaken. What caused any such mistake is immaterial to that argument.
[12] The proceedings have a trial date commencing on 6 February 2012 and continuing into the following week. Some of the parties to these proceedings are involved in another set of proceedings, the hearing of which is to be heard immediately after the first proceeding. Mr Regan and associated interests appealed unsuccessfully against a decision of Wylie J declining to consolidate the two sets of proceedings.[6]
[13] If we were to grant an extension of time, that would affect the High Court fixture. That would be prejudicial to the respondent. However, having sought further information from the parties on this aspect, it appears that the trial date is already at risk because of other outstanding applications which appear to require resolution in the High Court before the trial could proceed.
[14] We turn then to the merits of the proposed appeal. We consider the proposed appeal raises two arguable points. The first of these is as to the inter-relationship between r 6.27 and r 4.56 which deals with joinder. The applicants will say that, for various reasons, PEG’s application relating to Cartan Tours and Sportsmark should have been dealt with as an application for joinder under r 4.56.
[15] The second arguable point relates to Wylie J’s assessment that PEG did not delay in bringing the application to effect service overseas. It appears this argument will turn on an assessment of the impact on the respondent of the information gained in May 2010 after search orders were made when compared with the respondent’s state of knowledge after discovery in December 2010.
[16] The final consideration in terms of the application for an extension of time relates to the parties’ conduct. The point that can be made under this head is that the time for the applicants to raise their concerns about the application of r 4.56 and of r 6.27 was before Wylie J. The applicants did not base their opposition in the High Court on this argument.
[17] In determining where the overall interests of justice lie, the merits of the proposed appeal support granting an extension of time but that has to be weighed against the inadequate explanation for the delay and the applicants’ failure to raise some of the points now relied on earlier. The matter is finely balanced. However, given the absence of prejudice, when all the relevant matters are taken into account, we are satisfied that the interests of justice support the grant of an extension of time. The application is accordingly granted. To avoid further delays, the extension of time is subject to the applicants meeting the conditions set out at [20] below.

Leave to amend and to adduce further evidence

[18] No good reason is advanced by the respondent as to why leave to amend the application for an extension of time should not be granted. We have dealt with the matter on the basis of the amended application. Leave is accordingly granted to amend the application for an extension of time.
[19] We decline to grant leave to adduce further evidence. That application relates to the proposed evidence of Jeremy Moller contained in an affidavit of 16 June 2010. The proposed evidence is directed to the issue of delay but does no more than repeat evidence which is already before the Court. The applicants’ argument to which this evidence is directed is really an argument that the Judge was mistaken about the effect of the evidence already before him. The proposed evidence is accordingly neither fresh nor cogent.

Result and costs

[20] For these reasons, leave to amend the application for extension of time for filing the notice of appeal is granted. The application for an extension of time is granted subject to the conditions that, on or before 16 January 2012, the applicants:

• (a) file their notice of appeal;
• (b) pay the filing fee;
• (c) deal with security for costs;
• (d) apply for the allocation of a hearing date; and
• (e) file a case on appeal.

[21] The application for leave to adduce fresh evidence is dismissed. Costs are reserved.

Solicitors:
Franklin Law, Pukekohe, for Applicants
Minter Ellison Rudd Watts, Auckland, for Respondent

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[1] Premier Events Group Ltd v Beattie HC Auckland CIV-2010-404-3178, 24 June 2011.
[2] High Court Rules, rr 5.49 and 6.29.

[3] Counsel advised on 9 December 2011 that PEG and Sportsmark had reached agreement on matters in issue between them.

[4] My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].
[5] Siemer v Heron [2011] NZSC 133.
[6] Regan v Gill [2011] NZCA 607.