Wardell v ASB Bank Limited [2016] NZCA 497 (12 October 2016)

Last Updated: 21 October 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA97/2015 [2016] NZCA 497
BETWEEN	AMANDA JOSEPHINE WARDELL Appellant
AND	ASB BANK LIMITED Respondent

Hearing:	3 October 2016
Court:	Harrison, Asher and Brown JJ
Counsel:	Appellant in person N F D Moffatt for Respondent
Judgment:	12 October 2016 at 12.30 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to file the case on appeal is declined.

B The appeal is deemed abandoned.

C There is no order for costs.
____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] Amanda Wardell applies for an extension of time to file a case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules) and an extension of time to file affidavits in support of the appeal. The respondent, ASB Bank Ltd (ASB) applies for Ms Wardell’s appeal to be dismissed with costs. Ms Wardell is self-represented.
[2] The application arises out of the ASB’s enforcement of two loans to Ms Wardell totalling $950,200.00. She defaulted and there was a mortgagee sale. Following this the ASB applied for summary judgment against Ms Wardell for the balance it claimed was still owed of $336,313.76.
[3] Ms Wardell filed no notice of opposition or other document claiming a defence. The matter came before Associate Judge Osborne for formal proof on 5 February 2015. Prior to that Ms Wardell had asked an Australian lawyer to seek an adjournment. The lawyer’s associate made an informal request for an adjournment by email on 30 January 2015, attaching a copy of a “memorandum of advice given to Mr Brendan Thow” (Ms Wardell’s husband). Associate Judge Osborne issued a minute on 2 February 2015 noting that Mr Thow was not a party to the proceedings and there had been no formal application for an adjournment. A minute was sent to Ms Wardell’s email address prior to 5 February 2015. She claimed she did not receive the minute.
[4] On 5 February 2015 Associate Judge Osborne ordered summary judgment against Ms Wardell who had not appeared. He found there was no defence to ASB’s claim for the shortfall on the loans and entered judgment for $362,009.51 with interest, costs and disbursements.^[1]
[5] Ms Wardell filed a notice of appeal on 5 March 2015. Since then the matter has had considerable history in this Court. Ms Wardell in her submissions has claimed that the property that was sold at mortgagee sale had initially been purchased by her and her husband and then transferred into her name. Part of the debt was $90,000 raised for Mr Thow’s helicopter companies. This increase in mortgage was not documented or signed by her, and the claim for that $90,000 should have been against her husband’s companies and not against her personally.
[6] However, despite this assertion, Ms Wardell has filed no affidavits setting out any defence on this basis or any other basis, and has persistently defaulted in her obligations to file a case on appeal and bring the case to hearing. Because these delays are central to our decision, we now set out a procedural history in tabulated form:

Date	Event
5 February 2015	Summary judgment entered against Ms Wardell.
5 March 2015	Notice of appeal filed.
10 April 2015	Application to dispense with security for costs.
15 April 2015	ASB inform the Court it has not been served with the notice of appeal.
17 April 2015	Notice of appeal served on ASB.
20 April 2015	Randerson J directed by minute (among other things) that: (a) Ms Wardell’s appeal be treated as an application for extension of time to appeal; (b) Ms Wardell serve on ASB a notice of appeal by 1 May 2015; and (c) the application to dispense with security for costs be deferred until after a decision was made on the application for an extension of time.
20 July 2015	Date where the appeal would arguably be abandoned pursuant to r 43.
31 July 2015	First judgment released: application for extension of time to file the appeal granted to the date of service of the notice of appeal on ASB’s solicitors.[2]
24 August 2015	Ellen France P directed Ms Wardell that she would need to file and serve the affidavits on which she sought to rely for the purposes of her appeal.
11 September 2015	Registrar considered application for dispensation with security for costs and requested further information.
21 September 2015	Ms Wardell provided further information for security for costs.
20 October 2015	Final date to apply for an extension of time under r 43(2) based on it being abandoned on 20 July 2015.
10 November 2015	Registrar declined to dispense with security for costs.
7 December 2015	Ms Wardell applied to review the Registrar’s decision declining to dispense with security for costs.
5 April 2016	Cooper J dismissed Ms Wardell’s application to review the Registrar’s decision declining to dispense with security for costs.[3]
3 May 2016	Ms Wardell applied for an “extension of time on which [this Court] gives leave to appeal” and to vary payment of security for costs.
21 June 2016	Second judgment released: application to vary the payment of security for costs dismissed with the Court directing it to be paid by 30 July 2016.[4]
29 July 2016	Ms Wardell paid security for costs. By memorandum she also requested a hearing date in November 2016.
4 August 2016	Ms Wardell applied for an extension of time in which to file the case on appeal and sought leave from the Court to file affidavit evidence.
8 August 2016	Randerson J directed registry to treat Ms Wardell’s 4 August application as one under r 43 to extend the time to file the case on appeal and for directions as to when an application to adduce further evidence under r 45 must be filed.
18 August 2016	Randerson J issued a minute setting down the application for an extension of time in the Miscellaneous Motions list and allowing ASB to file an application to dismiss the appeal, to be dealt with at the same time.
31 August 2016	ASB applied for Ms Wardell’s appeal to be dismissed.

[7] In submissions before us Ms Wardell stated that what she wanted was legal assistance. She seemed to be asking this Court or the Crown to help her in that regard and to ask for an adjournment while she continues to seek legal help. We decline that request, given the history of non-compliance and the other matters to which we now refer.

Is the appeal abandoned?

[8] Ms Wardell in her submissions appears to have greatly widened the scope of her complaints against the ASB. She claims her husband was a victim of an international white collar fraud which included a corrupt, flawed and unlawful bankruptcy and other significant crimes committed by “many accountants, lawyers and their associates in crime”. She asserts the New Zealand public are at risk and goes into what appears to be the merits of telecommunication transmitters corrupting the pulse timing of electronically controlled airborne fuel systems.
[9] Any party wishing to challenge a determination of the High Court by an appeal to this Court must do so expeditiously or forfeit the right to pursue the appeal. Rule 43 is part of the regime created by the Rules that ensures this prompt pursuit of the necessary steps. Rule 43(1) provides that an appeal is treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within three months after the appeal is brought. An extension may be sought under r 43(3) before the expiry of the three month period or within three months after that expiry. Rule 43(3) provides that “no extension may be granted on an application that is made later than 3 months after that expiry”.
[10] As the above table shows, an extension of time was granted for the filing and service of the appeal on 31 July 2015. It was not appreciated by the parties or the Court at the time that the fact there had been service on the ASB on 17 April 2015 meant the first three-month period under r 43(1) had already elapsed (on 20 July 2015). However, at no point did Ms Wardell seek an extension of time for filing the case on appeal, or file the case on appeal, or file any affidavits that might indicate a defence, or seek a fixture. She had paid security for costs.
[11] Even if the day on which the appeal was properly brought was taken to be the date of the Court’s decision extending time of 31 July 2015 both three-month periods prescribed in r 43(3) would still have passed, the second period expiring on 22 February 2016.
[12] Rule 5(2) of the Rules gives the Court the power to extend or shorten the time appointed by the Rules for doing any act or taking any step in a proceeding. Rule 6(2) provides that non-compliance with the rules does not render an appeal void and r 6(3) gives the Court power to direct a party to remedy the noncompliance. However r 43(4) provides that the deemed abandonment overrides those rules. The effect of r 43(4) is therefore to limit the options that might otherwise be available to the Court, and to emphasise the self-contained nature of the rule.^[5]
[13] Given the various failures, this appeal must be deemed abandoned under r 43.^[6]

Application to dismiss the appeal

[14] We record that even if Ms Wardell’s appeal was still extant, we would have allowed ASB’s application to dismiss the appeal. This is for reasons we have already set out. To summarise:

• (a) The delays since 5 March 2015 when the notice of appeal was filed are serious and unexplained. They are the fault of Ms Wardell.
• (b) Apart from some general assertions and submissions, there is no apparent defence. In particular there has been a failure to file any affidavits to support the claim in submissions that Ms Wardell was not liable for the $90,000. The appeal now appears to have broadened into a much wider attack on a large number of issues concerning Mr Thow’s failed business.

Result

[15] The application for an extension of time to file the case on appeal is declined.
[16] The appeal is deemed abandoned.
[17] There is no order for costs.

Solicitors:
Bell Gully, Auckland for Respondent

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^[1] ASB Bank Ltd v Wardell [2015] NZHC 108.

^[2] Wardell v ASB Bank Ltd [2015] NZCA 344.

^[3] Wardell v ASB Bank Ltd [2016] NZCA 89.

^[4] Wardell v ASB Bank Ltd [2016] NZCA 275.

^[5] Sexton v Rice Craig [2007] NZCA 200 at [29].

^[6] It is to be observed that r 43 commences with the heading “Appeal abandoned if not pursued”.