Williams v Armstrong [2014] NZHC 552 (24 March 2014)

Last Updated: 9 April 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2014-463-000044 [2014] NZHC 552

BETWEEN RONALD KEVIN WILLIAMS Appellant

AND JAMES KEITH ARMSTRONG First Respondent

GHISLAINE EVA TANGNEY Second Respondent

Hearing: (On the papers) Judgment: 24 March 2014

JUDGMENT OF VENNING J

_{DISMISSING APPLICATION FOR LEAVE TO APPEAL OUT OF TIME}

This judgment was delivered by me on 24 March 2014 at 4.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date...............

Copy to: Appellant

Second Respondent

WILLIAMS v ARMSTRONG & Anor [2014] NZHC 552 [24 March 2014]

Introduction

[1] The Registrar has referred this file to me. The applicant Mr Williams seeks special leave to extend the time for him to appeal from a decision of Judge Rollo delivered in the District Court at Opotiki on 2 September 2008.

[2] I have come to the view that the application for leave is hopeless and should be dismissed on the papers.

Background

[3] Mr Williams sued Mr Armstrong and Ms Tangney in the District Court at

Opotiki. He claimed moneys he said he had advanced to them between 1994 and

1999. The proceedings were issued in May 2005. In his judgment delivered on 2

September 2008 Judge Rollo entered judgment in favour of Mr Williams against Mr Armstrong for $99,140.91 together with interest. However, he entered judgment for Ms Tangney against Mr Williams finding that there was no basis for Mr Williams’ claim that she was jointly liable with Mr Armstrong for the moneys advanced by Mr Williams.

[4] Although partially successful in the proceedings Mr Williams had a right of appeal under s 72 of the District Courts Act 1947 and r 704 (as it was at the time) of the High Court Rules. However, any appeal was required to be brought within 20 working days after the decision (by 30 September 2008).

[5] Two significant events occurred following the decision. Firstly, Mr Armstrong died without satisfying the judgment. Secondly, Mr Williams commenced proceedings in the High Court at Rotorua on 22 July 2010 against Mr Armstrong (despite the fact he was deceased), Ms Tangney and Mark Tangney.

[6] In a judgment delivered on 16 July 2013 Associate Judge Christiansen struck

out Mr Williams’ claims in CIV-2010-463-635 as an abuse of process.

[7] Despite that, Mr Williams has now (on 12 March 2014) filed an application

for leave to appeal Judge Rollo’s decision out of time.

Principles on an application for leave

[8] An extension of time is an indulgence. A proper explanation is required as to the circumstances concerning the failure to appeal in time: Commissioner of Inland Revenue v Dick.¹

[9] The conditions affecting whether the Court will exercise the discretion include:

(a) the length of the delay; (b) the reasons for it;

(c) the parties’ conduct;

(d) the extent of the prejudice caused by the delay; (e) the prospective merits of the appeal; and

_{(f) whether the appeal raises any issue of public importance.}²

Decision

[10] In the present case the length of the delay is egregious. It is close to five and a half years out of time.

[11] The reasons for the delay are not adequately explained. Mr Williams said in the documents accompanying his application that he has discovered case law and statutes which he has only recently become aware of, which in his words, “precludes settlement of the judgment on the basis of false information claimed by the defendants and which was accepted by the Court”. Ignorance of the law is no

_{excuse. Mr Williams was represented by counsel at the District Court hearing.}

¹ _{Commissioner of Inland Revenue v Dick (2014) PRNZ 378.}

² My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224; (2009) 19 PRNZ 518.

[12] Further, as noted, Mr Williams issued proceedings in this Court against the same parties and those proceedings were struck out as an abuse of process. I note that in the course of those proceedings Mr Williams filed a document on 20 March

2012 in which he stated:

Many of the details of this judgment [Judge Rollo’s decision in the District Court] are inaccurately based on false claims by the defendants, but because they were not relevant to the final judgment, the Plaintiff and Councel [sic] chose not to address these claims at this trial.

[13] Ms Tangney succeeded in her defence of Mr Williams’ claim in the District Court. No appeal was lodged. After five years she was entitled to make plans for her future on the basis of the judgment.

[14] As to the merits of the proposed appeal, I have to say that my review of the grounds set out in the notice of appeal do not support any conclusion other than that the appeal is hopeless. Mr Williams clearly seeks to challenge a number of factual findings of the Judge who heard the evidence.

[15] Finally, the appeal does not raise any issues of public importance.

Result/orders

[16] For the above reasons the application for leave to appeal out of time is dismissed on the papers.

Venning J