Jones v New Zealand Bloodstock Finance & Leasing Limited [2023] NZCA 169 (12 May 2023)

Last Updated: 15 May 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA372/2022 [2023] NZCA 169

	BETWEEN	GREGORY JOHN JONES Appellant
	AND	NEW ZEALAND BLOODSTOCK FINANCE & LEASING LIMITED Respondent

Court:	Brown and Mallon JJ
Counsel:	Appellant in person F A King for Respondent
Judgment: (On the papers)	12 May 2023 at 12.30 pm

JUDGMENT OF THE COURT

The application under r 43(2) of the Court of Appeal (Civil) Rules 2005 is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] In a judgment dated 5 June 2020 granting summary judgment in favour of the respondent against the appellant, the quantification of costs was left undetermined.^[1] In the judgment under appeal, Jagose J quantified the amount of solicitor/client costs payable by the appellant.^[2] On 21 July 2022 the appellant filed a notice of appeal.

[2] However he failed to comply with the requirements of r 43(1) of the Court of Appeal (Civil) Rules 2005 (the Rules) by applying for the allocation of a hearing date and filing the case on appeal. Consequently his appeal was treated as having been abandoned after three months, namely on 21 October 2022. The appellant now applies for an extension of time under r 43(2) which, if granted, would have the effect of reinstating his appeal.^[3] The respondent opposes his application.

Relevant background

[3] Litigation between this appellant and respondent has reached this Court four times: CA350/2020, CA538/2020, CA19/2022, and CA372/2022 (the present appeal). We will first set out this litigation history.

[4] The respondent’s application for summary judgment was heard on 26 May 2020. Judgment was delivered on 5 June 2020.^[4] On 9 July 2020 Jagose J delivered a further judgment both declining leave to appeal against his decisions on various interlocutory applications made by the appellant and refusing a stay of execution of the summary judgment.^[5]

[5] On 3 July 2020 the appellant filed a notice of appeal against the summary judgment (CA350/2020). On 7 September 2020 he filed an application for leave to appeal against the interlocutory rulings, seeking five orders (CA538/2020).

[6] On 16 November 2021 the appellant filed a proceeding against 16 named defendants, including the respondent, in addition to “unknown defendants” alleging, among other things, an unlawful conspiracy to cause him financial harm by nine of those defendants. On 29 November 2021 Venning J delivered a judgment striking out a number of the causes of action as an abuse of process.^[6] On 17 January 2022 the appellant filed an appeal against that decision (CA19/2022).

[7] On 23 June 2022 Jagose J delivered the judgment^[7] which is the subject of the present appeal (CA372/2022).

The application for an extension of time

[8] On 25 July 2022 the appellant was advised by the Registry that security for costs had been set at $7,060 payable by 18 August 2022. He was also advised of the requirements of r 43 and the implications of a failure of compliance by 21 October 2022.

[9] The appellant did not pay security for costs by 18 August 2022. By letter dated 21 September 2022 he was reminded that his appeal would be automatically deemed abandoned under r 43(1) if he did not apply for the allocation of a hearing date and file the case on appeal by 21 October 2022. He was also informed that he could not apply for the allocation of a hearing date if security for costs remained unpaid.

[10] On 3 October 2022 the appellant filed an application to dispense with security for costs. A decision declining that application was delivered by the Deputy Registrar on 19 October 2022. On 16 November 2022 the appellant filed a memorandum seeking a review by a Judge of the Deputy Registrar’s decision refusing to dispense with security for costs under r 5A(3) of the Rules. However in the interim, on 22 November 2022, his appeal was deemed abandoned for failure to comply with r 43. When advised of this the appellant replied that he understood the appeal process was stayed until the security for costs issue had been dealt with.

[11] When the procedure specified in r 43(1B)(c) of the Rules was drawn to his attention, the appellant replied:

Reference to McGechan see 6/642 – CR 35.03 indicates,

“An application under (35)6 stops the 35(2) time running”.

It goes with out saying it would seem to me, that a review of the registrar under Rule 5(2) has a similar effect and as a result the whole appeal process is stayed otherwise the court could skupper an appeal through its own delays which can’t be an acceptable outcome. Do you have any authority to support this unusual outcome?

[12] The following day he sent a further email in the following terms:

This process is under the control of the registrar to some degree and so, as a result, the means by which we [the registrars and litigants] communicate and are bound to respond is in accordance with the principles of natural justice. I cite that by way of an example in slight contra-distinction to the manner in which litigants are bound to communicate with Judges through memoranda and Judges respond as they see fit, but bound again by the same guiding principles.

The purpose of that slight detour is to explain that [I] wrote to the registrar yesterday saying this matter is currently under the control of a Court of appeal Judge who is bound to carry out a review of the decision previously reached. The point [I] made in my recent correspondence was that [I] am of the view that time in relation to the appeal process stands still as it must while the registrar considers an application to defer security and so as a matter [of] logic so must it stand still when a further review is underway. That letter required a response in my view and it is entirely in appropriate to send me back a notice of result with out providing me with a response so [I] can consider the reasons for the view held by the registrar, before further assessing whether an application is necessary. I would be grateful for an answer to my letter and also some indication of whether the judge/judges considering my review consider themselves functus officio and if so on what basis.

I look forward to your early response. I should not need to make an unnecessary application if there has been a mistake.

[13] On 5 December 2022 the appellant filed the application for extension of time under r 43(2), which is the subject of this judgment.

Relevant principles

[14] As this Court explained in Yarrow v Westpac New Zealand Ltd,^[8] the decision of the Supreme Court in Almond v Read, although concerned with r 29A of the Rules rather than r 43, applies to any interlocutory application for an extension of time where there is a right of appeal.^[9]

[15] The ultimate question when considering the exercise of the discretion to grant or decline an extension of time is what the interests of justice require. Factors identified as likely to require consideration include:^[10]

(a) the length of the delay;

(b) the reasons for the delay;

(c) the conduct of the parties, particularly of the applicant;

(d) any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and

(e) the significance of the issues raised by the proposed appeal, both to the parties and more generally.

[16] While the Court recognised that the merits of an appeal may, in principle, be relevant to the exercise of the discretion to extend time, a decision to refuse an extension of time based substantially on that ground should be made only where the appeal is clearly hopeless. The lack of merit must be readily apparent.^[11]

Discussion

[17] The appellant submits that his application for extension of time was filed within a matter of days of the time limit expiring. Although that is something of an exaggeration, we accept that the delay in filing the extension application was not significant.

[18] In his submissions the appellant says that he overlooked the need to proceed with the appeal and incorrectly assumed that time would stand still until there was a decision given on the review of the Deputy Registrar’s decision declining to dispense with security for costs.

[19] We are unable to accept the proposition that the appellant assumed (incorrectly) that time would stand still. The appellant is a barrister who is familiar with the processes of this Court, particularly due to the series of appeals he has brought to this Court arising from his commercial relationship with the respondent. We note that in the first appeal (CA350/2020), where the appellant filed an application to review the Deputy Registrar’s decision declining to reduce security for costs, the appellant filed an application under r 43(1B)(c) seeking an extension for one month to the r 43(1) period. That application was granted with time being extended until 5 November 2020. On delivery of the review decision on 22 October 2020, the appellant filed an application under r 43(2) for an extension of the time to comply with r 43(1). That extension of time was eventually granted in a decision dated 26 May 2021.^[12] The Court stated that no further extensions would be granted.^[13]

[20] In the same judgment, CA538/2020 was struck out as an abuse of process.^[14] The context to that order is as follows. On 18 November 2020, a direction had been given that it was the Court’s intention to consider making an order striking out CA538/2020 because it was an abuse of process, given that it raised matters which should be addressed in the extant appeal CA350/2020.^[15] However, notwithstanding that direction, the appellant sought to proceed with CA538/2020, contending that the subject of that appeal should be dealt with in the absence of any consideration of the summary judgment.^[16] This Court observed:

[15] It appears from the papers that it is this last consideration that motivated Mr Jones’s decision to file a separate appeal, by leave, against decisions made on 20 and 25 May; he wanted to wind the clock back and have that appeal heard without reference to the merits of the summary judgment application. He has argued that the Court should hear them “in the context in which they were made and at the time they were made”. He now accepts they must be heard together but evidently continues to perceive some advantage in having them separately intituled. It is an advantage that eludes us.

[21] The Court stated that the appellant ought to have known better than to file CA538/2020 and that his persistence in the face of judicial direction was inexplicable.^[17] The Court considered that his behaviour had delayed the progress of CA350/2020, an outcome for which he alone was responsible, and imposed unnecessary burdens on the Court and the respondent.

[22] In CA19/2022 security for costs was set at $120,020 and the appellant was advised that non-compliance with r 43(1) by 19 April 2022 would result in his appeal being automatically deemed abandoned. On 19 April 2022 the appellant applied under r 35(6)(c) for security for costs to be dispensed with and under r 35(10) for an extension of time to make that application. As the respondents who filed notices of appearance all confirmed they did not wish to participate in the appeal, the Deputy Registrar granted the extension of time and made the order dispensing with security for costs.

[23] However the Deputy Registrar noted that the appeal had been deemed abandoned on 26 April 2022 and that an interlocutory application for extension of time would be required to reinstate it. The appellant applied for an extension of time of five working days under r 5A(1)(c)(ii) of the Rules in order to do so. That extension was granted. On 11 May 2022 the appellant then applied for an extension of time under r 43(2). As that application was not opposed the Deputy Registrar made an order under r 5A(1)(c)(i) extending the time for complying with r 43 until 19 July 2022. However the appellant did not comply with r 43(1) within that extended period and the appeal was deemed abandoned (for a second time) as at 20 July 2022.

Conclusion

[24] Given the lengthy course of this litigation and the nature of the various applications which the appellant has made in the context of his previous appeals, we consider that his explanation for his failure to comply with r 43(1) in CA372/2022 is implausible. We accept the respondent’s submission that the extension sought would be prejudicial in compounding the delays which have already occurred in this litigation as a consequence of the appellant’s conduct.

[25] The substance of the appeal, namely the quantification of solicitor/client costs which are payable pursuant to the parties’ contractual arrangements, does not raise an issue of significance, either for the parties or more generally.

[26] Weighing these considerations, we do not consider that the interests of justice warrant the grant of an extension of time to comply with r 43(1).

Result

[27] The application for an extension of time under r 43(2) of the Rules is declined.




Solicitors:
McKenna King Dempster, Hamilton for Respondent

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^[1] New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 1233 [Summary judgment].

^[2] New Zealand Bloodstock Finance & Leasing Ltd v Jones [2022] NZHC 1477 [Judgment under appeal].

^[3] See r 43(7).

^[4] Summary judgment, above n 1.

^[5] New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 1633 at [25].

^[6] Jones v New Zealand Bloodstock Finance & Leasing Ltd [2021] NZHC 3220.

^[7] Judgment under appeal, above n 2.

^[8] Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].

^[9] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

^[10] At [38].

^[11] At [39(c)].

^[12] Jones v New Zealand Bloodstock Finance & Leasing Ltd [2021] NZCA 213 [Joint appeal judgment] at [45(b)].

^[13] At [45(b)].

^[14] At [45(a)].

^[15] Jones v New Zealand Bloodstock Finance & Leasing Ltd CA538/2020, 18 November 2020 (Minute 2 of Brown J) at [6].

^[16] Joint appeal judgment, above n 12, at [14].

^[17] At [24].