Wood v Glover [2014] NZHC 738 (9 April 2014)

Last Updated: 1 May 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000055 [2014] NZHC 738

IN THE MATTER of leave to appeal out of time

BETWEEN JOHN LAING WOOD Appellant

AND RAYMOND JOHN GLOVER Respondent

Hearing: 1 April 2014

Appearances: M B Meyrick for the Appellant

JRF Anderson for the Respondent

Judgment: 9 April 2014

_{RESERVED JUDGMENT OF ELLIS J}

This judgment was delivered by me on Wednesday 9 April 2014 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel/Solicitors:

M B Meyrick, Berman and Burton, Ellerslie, Auckland

JRF Anderson, Barrister, Auckland

WOOD v GLOVER [2014] NZHC 738 [9 April 2014]

[1] Mr Wood wishes to appeal a fully reasoned decision given by Judge Blackie in the Manukau District Court on 4 November 2013, in which the Judge rejected Mr Wood’s claim that Mr Glover had converted a number of motor vehicles in the course of what was essentially a joint venture between Mr Wood/Mr Wood’s company and Mr Murray Sanderson/Mr Sanderson’s company, Sanderson

Investments Ltd.¹ Mr Sanderson is an Australian who lives in Brisbane. Neither Mr

Sanderson nor his company was a party to the proceedings in the Court below.

[2] In general terms, joint venture involved the sourcing of prestige European vehicles via Mr Sanderson’s agents in Hong Kong (Mr Poon Qui Him, trading as Him’s Motor Centre) and shipping them to New Zealand. After the vehicles were processed by Customs and any VINZ compliance issues were addressed the cars were marketed for sale. Mr Glover was engaged by the joint venture to handle all these types of requirements in New Zealand.

[3] Mr Wood did not, however, commence his appeal within 20 working days of the Judge’s decision. Instead he filed a pro forma notice (by which I mean a notice that simply averred that the learned Judge’s decision was wrong in fact and law) on

15 January 2014. He did not, however, email a copy of that notice to Mr Glover until 20 January 2014 but the attachments were missing. Proper service was not effected until 7 March 2014.

[4] Mr Glover then filed documents disputing this Court’s jurisdiction to hear the appeal on the grounds that:

(a) Judge Blackie’s decision was not “final” and could not therefore be

appealed; and

(b) In any event the appeal was out of time and no application for special leave had been made.

[5] Mr Wood then filed an application for special leave and an affidavit in support.

¹ Wood v Glover DC Manukau CIV-2012-092-003837. 4 November 2013.

[6] The matter was called in the Civil Appeals List on 11 March 2014. My minute of that date records that I directed a further call on 1 April and that I would hear the cross applications (namely the application to dismiss for want of jurisdiction and the application for special leave) at the end of the Civil Appeals List on that day.

[7] On 1 April Mr Meyrick appeared for Mr Wood. He advised that Mr Wood’s former lawyer, Mr McKelvin, had recently left his firm and that he had been unable to find the file, although he was generally familiar with it. He was, however, able to address me on the matters at hand and I proceeded to hear the applications on that basis.

Was Judge Blackie’s decision final?

[8] The reason for Mr Anderson’s contention that the District Court decision was not final was because the Judge left several matters open at the end of the judgment. He said:

[58] Despite the outcome of this case, there remain issues to be resolved between all four parties. During the course of the hearing, when Mr Sanderson was present in New Zealand, I endeavoured to persuade them to meet over a weekend adjournment to see whether a settlement could be reached. Regrettably, this turned out not to be the case.

[59] The vehicles continue to exist and, as I understand the position, are available to be marketed. There is no ability for the Court to make any precise directions as to how matters are to be brought to a conclusion, save as to determine any issues as to outstanding costs. The Court does, however, have power pursuant to the District Courts Act 1941 and the District Court Rules 2009 to make an order for the appointment of a receiver. That may be an appropriate procedure to resolve ultimate disposal of the vehicles, the payment of outstanding costs and the division of the net proceeds between Mr Sanderson and Mr Wood.

[60] I invite counsel to consider the following:

(a) A response by the plaintiff to the defendant’s application for

costs.

(b) An indication from all parties as to whether they are likely to be able to resolve matters between themselves as to the final disposal of the remaining vehicles and the division of the proceeds.

(c) An indication as to whether Mr Wood and Mr Glover, with or without the acquiescence of Mr Sanderson and Mr Poon,

wish to consider the appointment of a receiver and, if so, the manner in which such an appointment should be facilitated.

[61] A response to the above is to be made within 15 working days.

[9] It is my clear view that the learned Judge did determine the critical issue before him, namely whether Mr Glover had converted the cars. He found unequivocally that he did not. That is the “outcome of this case” to which the Judge refers in [58]. And that is the decision that Mr Wood wishes to appeal.

[10] Moreover, as I understood it from Mr Anderson the response from the parties on these issues has been desultory and it is not known whether any further orders could, or will, be made by the Judge.

[11] I therefore consider that, provided special leave is granted, this Court would have jurisdiction to hear the appeal

Special leave for an extension of time

[12] The factors that are relevant to the grant of leave for an extension of time are well known. The Court will consider:

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

(c) the strength and merits of the case on appeal; and

(d) the overall interests of justice, including any prejudice to the respondent.

[13] The fact that it is special leave that is required under r 20.4, seems to me to suggest that an extension of time should not be granted as a matter of course.

Discussion

The length of the delay

[14] The delay here is not particularly great. The intervening Christmas break (which is not taken into account when computing time) meant that Mr Wood was about a week out of time when he first drew the appeal to Mr Glover’s attention, although I accept that formal service was not effected until some time later.

The reasons for the delay

[15] In the affidavit filed by Mr Wood in support of the application for special leave, he said that he had advised his lawyer at the time of Judge Blackie’s judgment that he wished to appeal and that he applied for legal aid for that purpose. He said that the legal aid application was initially declined and that his lawyer wrote an email saying he would need to reconsider whether he wished to appeal in light of that decision. Mr Wood deposes that he did not receive that email.

[16] On 20 December Mr Wood says he became aware that no appeal had been lodged. The Christmas break then intervened and Mr Wood drafted and filed his appeal personally on 15 January. Mr Wood’s reapplication for legal aid was granted on 20 January. It was at that point that he forwarded a copy of the notice of appeal to Mr Glover’s lawyer.

Merits of the case on appeal

[17] As I have said, the grounds of appeal recorded in the notice filed by Mr Wood are merely that the Judge was wrong in fact and law. I necessarily must resort to my own analysis of the District Court judgment which, as I have said, is thorough.

[18] The judgment makes it clear that Mr Glover “repossessed” a number of cars on the instructions of Mr Sanderson because Mr Wood had failed to pay the various mechanics and other tradesmen who had done work on the cars and had commandeered at least one of them for his own use.

[19] The facts giving rise to the “repossession” are, however, ultimately immaterial. That is because the principal reason the Judge held that the conversion claim failed was because property in the vehicles had never passed to Mr Wood. And the principal reason for that finding was a heads of agreement that had been both drafted and signed by Mr Wood which stipulated that the vehicles:

... remain the property of Sanderson Investments until settled from profits of sale to end purchaser in New Zealand.

[20] It is not in dispute that the vehicles presently at issue were not sold to an “end purchaser” in New Zealand. Indeed, that is why they were in Mr Wood’s possession. On a straightforward application of the above clause, therefore, the cars remained the property of Sanderson Investments. They were not Mr Wood’s property. Mr Glover was working under the instruction of Mr Sanderson. There can be no conversion.

[21] Accordingly I can discern no obvious error of analysis or approach by Judge Blackie. There is nothing in his judgment to suggest that any other result was open to him.

[22] In addition, there has, in my assessment, been a failure by Mr Wood and his advisors to analyse the legal relationships and obligations between the parties. It is, for example, inexplicable that Mr Sanderson was not made a party to the claim in the District Court. By and of itself, his absence from the proceeding militates against the merits of the proposed appeal.

Other matters

[23] At the end of the hearing before me, Mr Meyrick indicated that it was his understanding that an allegation of forgery had been made in relation to one of the documents that was in evidence in the District Court. He had no further information about that but said that he believed the matter had been referred to the Police. In fairness to Mr Wood, therefore, I granted leave to Mr Meyrick to file a further memorandum containing any further information he wished to put before the Court in that respect.

[24] No such memorandum has, however, been filed. Accordingly I proceed on the assumption that Mr Meyrick was mistaken or that the forgery allegation has no relevance to the issues presently at hand.

Conclusion

[25] In my view the delay in filing and serving the appeal, and the reasons for that delay are relatively neutral factors in terms of whether special leave should be granted in this case. But the merits of the proposed appeal count overwhelmingly against Mr Wood’s position. On the basis of the information before me it is impossible to conclude that the interests of justice favour the grant of an extension of time.

[26] The application under rule 20.4 for special leave to extend the time for bringing the appeal is declined, for the reasons I have given.

Rebecca Ellis J