Maqbool v Patel [2012] NZCA 15 (16 February 2012)

Last Updated: 23 February 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA700/2011 [2012] NZCA 15

BETWEEN JALALUDIN KHAN MAQBOOL Applicant

AND JAYSHREE RATILAL PATEL Respondent

Hearing: 7 February 2012

Court: Glazebrook, Wild and White JJ

Counsel: Applicant in Person Appearance for Respondent excused.

Judgment: 16 February 2012 at 3 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is dismissed.

2. The applicant is to pay the respondent one-half of the costs for a standard application on a band A basis, but without the usual disbursements.
   

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REASONS OF THE COURT
(Given by Wild J)

[1] By notice filed on 21 October 2011 Mr Maqbool seeks an extension of time to appeal against two judgments:

• (a) the first of Wylie J, delivered on 27 May 2010 in two proceedings, heard together, dealing with the parties’ relationship property;[1]
• (b) the second of Peters J, delivered on 15 July 2011, dismissing a fresh proceeding brought by Mr Maqbool on the ground that it sought to relitigate matters dealt with in the judgment of Wylie J.[2]

[2] Although Ms Patel did not appear, she filed a memorandum on 7 February 2012 opposing Mr Maqbool’s application, essentially on the ground that it was vexatious. On 3 November 2011 counsel then acting for Ms Patel had filed a detailed memorandum setting out the grounds on which Ms Patel opposed the application.
[3] As the dates set out in [1] above indicate, Mr Maqbool’s proposed appeals are about 16 months out of time in respect of the judgment of Wylie J, and two months out of time in respect of the judgment of Peters J.
[4] This is not the first application Mr Maqbool has made for an extension of time to appeal against the judgment of Wylie J. He applied on 30 June 2010, but abandoned that application by notice filed on 13 October 2010, just days before the application was scheduled to be heard on 19 October 2010.[3]
[5] This abandonment of an earlier application for an extension of time to appeal Wylie J’s judgment is an initial obstacle in Mr Maqbool’s path. Rule 44 of the Court of Appeal (Civil) Rules 2005 requires a party who wishes to abandon an appeal to file a signed notice advising that he:

(1) ...

(b) does not intend to prosecute the appeal further; and

(b) abandons all further proceedings concerning that appeal.

Mr Maqbool’s notice effectively did that. Its precise wording was:

The Applicant no longer wishes to proceed any further with his Appeal and therefore withdraws his Application in respect to the above matters.

[6] Strictly, r 44 does not apply because Mr Maqbool never got an extension of time and therefore had no appeal to abandon. But he did unequivocally abandon his earlier application for an extension of time to appeal. We view that earlier abandonment as — to say the least — unhelpful to this further application.
[7] Mr Maqbool advanced to us various explanations for his delay in again seeking an extension of time to appeal the judgment of Wylie J. First, he said he had had responsibility for managing and selling the various relationship properties. He contended that his efforts to sell these properties had been frustrated by Ms Patel’s refusal to withdraw the notices of claim she had registered against them. He also explained that he had wanted to settle the debt he owed Ms Patel as a result of the judgment of Wylie J, before appealing that judgment. He did not explain this counter-intuitive thinking.
[8] Mr Maqbool also put forward, as explanations for his delay, the death of his father (he did not say when he died), his obligations to care for his “pretty fragile 85 year old mother”, and his obligations to care for and support his family of three.
[9] Even in combination, we do not consider that these reasons justify a 16 month delay in seeking an extension of time to appeal, particularly when an earlier application was abandoned.
[10] However, it is the lack of any merit in either of the proposed appeals that is fatal to this application.
[11] We deal first with the judgment of Wylie J. Mr Maqbool told us that he only wanted to appeal two aspects of the judgment (strictly the second point of appeal was not an aspect of the judgment). The first ground of appeal is Wylie J’s treatment of the property at Alba St in Epsom in Auckland. Wylie J dealt with that property at [94]–[98] of his judgment. The Judge found that Alba St had been purchased by Ms Patel and her siblings at a time when she and Mr Maqbool were not living in a de facto relationship. The Judge also found that Ms Patel had bought out her siblings and owned the property in her name alone, subject to a mortgage that she had been slowly paying off. The Judge also recorded that the parties had lived at Alba St with their son from January 2001 to March 2003 — the period of their second de facto relationship. The Judge then made these findings:

[98] Mr Maqbool has made no contribution to Alba Street, either directly or indirectly. He does not claim to have done so. There cannot be any constructive trust in his favour. This property belongs in its entirety to Ms Patel.

[12] Mr Maqbool did not challenge the correctness of [98]. He accepted that he had not, before Wylie J, advanced any claim to Alba St. He told us that he now wished to claim a share of Alba St. Orally, he said that this was on the basis that he had paid $8,000 of the deposit on the property. He had also filed an affidavit affirmed on 24 September 2011 by his nephew Nurul Mukbool in Suva, Fiji. Mr Mukbool deposed:

2. That during one of my visits to NZ some years ago my cousin Babu [Vikash] and I assisted my uncle Mr Khan Maqbool to construct the mezzanine floor area and the alteration of the existing living area of the dwelling at 2/37 Alba Rd, Epsom that belongs to Ms Jayshree Patel.
3. That I assisted him with all the heavy lifting and fixing of the beams and posts and the placement of the staircase — in other words the general structural works of the project. I understand Mr Maqbool later completed the remaining [bits] and pieces of this project.

[13] Wylie J records at [42] of his judgment that the parties’ child was born in July 1996. Our understanding is that this child is Vikash. Although Mr Mukbool does not date the visit during which he claimed he and Vikash assisted the applicant, Vikash would have been between five and a half and seven and a half years old during the time the parties lived together in Alba St. In short, there is a credibility issue with Mr Mukbool’s evidence, into which we need not go further.
[14] Mr Maqbool did not contend that the evidentiary bases he advances for this claim were unavailable to him at the time of the hearing before Wylie J in March 2010. Mr Maqbool accepted that the position is simply that he now wishes to advance a claim that he chose not to advance at the hearing before Wylie J. The principle of the finality of litigation required Mr Maqbool to advance any claim in respect of Alba St that he wished to make at the hearing in March 2010 before Wylie J. It is now too late for Mr Maqbool to advance that claim.
[15] Mr Maqbool’s second proposed ground of appeal was that Wylie J failed to factor into his judgment a relationship debt owed to the Inland Revenue Department. When we asked Mr Maqbool about this, he accepted that he had not asked Wylie J to deal with that debt, but suggested that the evidence about it “was in the bundle”. This alleged relationship debt is in the same position as the Alba St property: if Mr Maqbool wished to have it taken into account, he needed to put that claim to Wylie J. He did not.
[16] As Mr Maqbool has no prospect whatsoever of successfully appealing Wylie J’s judgment in respect of its treatment of Alba St and its “failure” to deal with the alleged IRD relationship debt, we decline to extend time for Mr Maqbool to appeal that judgment.
[17] That brings us to the application for an extension of time to appeal the judgment of Peters J. These parts of that judgment explain why Peters J made, pursuant to r 15.1(1) and (2), orders striking out Mr Maqbool’s statement of claim and dismissing his proceeding:

[2] In his statement of claim, the plaintiff seeks orders in respect of a property situated at 2/37 Alba Road, Epsom (“property”). The pleaded basis of the plaintiff’s claim is that he made contributions, directly and indirectly, towards the property and that he has an interest in the property as a result.

[3] The essence of the defendant’s application to strike out the pleading is that Wylie J determined this issue in a decision dated 27 May 2010 in CIV-2009-404-7323. The relevant paragraphs of Wylie J’s judgment are paragraphs [95] to [98] inclusive. In his judgment, Wylie J found that the plaintiff had made no contributions to the acquisition of the property, either directly or indirectly. Wylie J also recorded that the plaintiff did not claim to have made any contributions to the property. Wylie J held that there could not be any constructive trust in the plaintiff’s favour in respect of the property.

...

[7] It is clear to me that the plaintiff is seeking to put in issue the same issue that Wylie J determined and that his doing so is an abuse of process.

[18] Mr Maqbool did not contend that Peters J had mischaracterised the aim of his fresh proceeding. Again, Mr Maqbool has no prospect at all of successfully appealing that judgment and it is accordingly pointless to grant him an extension of time to appeal it. We dismiss his application also in respect of the judgment by Peters J.
[19] Although the respondent was not represented at the hearing of Mr Maqbool’s application, her previous counsel had prepared and filed a detailed memorandum dated 3 November 2011 opposing the application. That memorandum has assisted us. Accordingly, we order Mr Maqbool to pay Ms Patel 50 per cent of the costs for a standard application on a band A basis, but without the usual disbursements.

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[1] Patel v Maqbool HC Auckland CIV-2009-404-7323, 27 May 2010.
[2] Maqbool v Patel HC Auckland CIV-2010-404-6332, 15 July 2011.
[3] Maqbool v Patel CA 411/2010.