MALIK v SYED & ORS [2022] NZCA 551
The High Court had not granted leave to appeal under s 56(3) Senior Courts Act 2016, therefore the Court of Appeal lacked jurisdiction to hear the purported interlocutory appeal; accordingly the appeal is struck out under r 44A of the Court of Appeal (Civil) Rules 2005, and the appellant may apply to the High Court...
Source-derived case information.
- Citation
- [2022] NZCA 551
- Parties
- Appellant: Amir Fazal Malik; First Respondent: Zainul Abidin Syed; Second Respondent: Transnational Limited; Third Respondent: Pacific Motel Limited; Fourth Respondent: Shah Family Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 16 November 2022
- Procedural Posture
- Appeal (court of Appeal) / Interlocutory Appeal Against High Court Refusal of Freezing Orders; Struck Out for Want of Jurisdiction
- Outcome
- Appeal struck out for want of jurisdiction (no leave granted by High Court)
- Legal Topics
- Leave to Appeal, Freezing Orders, Strike Out, Extension of Time
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amir Fazal Malik
Appellant
Zainul Abidin Syed
First Respondent
Transnational Limited
Second Respondent
Pacific Motel Limited
Third Respondent
Shah Family Limited
Fourth Respondent
Procedural Posture
Appeal (court of Appeal) / Interlocutory Appeal Against High Court Refusal of Freezing Orders; Struck Out for Want of Jurisdiction
Legal Issues
- 1 Whether leave to appeal was granted by the High Court under s 56(3) Senior Courts Act 2016
- 2 Whether the Court of Appeal has jurisdiction to hear an interlocutory appeal absent High Court leave
- 3 Whether the appeal should be struck out under r 44A Court of Appeal (Civil) Rules 2005
Ratio Decidendi
The High Court had not granted leave to appeal under s 56(3) Senior Courts Act 2016, therefore the Court of Appeal lacked jurisdiction to hear the purported interlocutory appeal; accordingly the appeal is struck out under r 44A of the Court of Appeal (Civil) Rules 2005, and the appellant may apply to the High Court for leave to appeal and for an extension of time if appropriate.
Court Disposition
Appeal struck out for want of jurisdiction (no leave granted by High Court)
Orders
- The appeal is struck out.
- Appellant may apply to the High Court for leave to appeal under s 56(3) Senior Courts Act 2016 and for an extension of time to make that application.
Full Case Text
Judgment text and source record
1 paragraphs
MALIK v SYED & ORS [2022] NZCA 551 [16 November 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA92/2022[2022] NZCA 551BETWEEN AMIR FAZAL MALIKAppellantAND ZAINUL ABIDIN SYEDFirst RespondentAND TRANSNATIONAL LIMITEDSecond RespondentAND PACIFIC MOTEL LIMITEDThird RespondentAND SHAH FAMILY LIMITEDFourth RespondentCourt: Cooper P and Brown JCounsel: Appellant in PersonNo appearance for RespondentsJudgment:(On the papers)16 November 2022 at 11.00 amJUDGMENT OF THE COURTThe appeal is struck out.____________________________________________________________________REASONS OF THE COURT(Given by Cooper P)A purported appeal[1] In February 2022 Mr Malik purported to appeal against a judgment of theHigh Court in which Robinson J declined an application for freezing orders.1 As thatjudgment dealt with an interlocutory matter, leave to appeal was required from theHigh Court under s 56(3) of the Senior Courts Act 2016. In his notice of appealMr Malik asserted the High Court had granted him leave on 9 February 2022, the dateof the judgment. The Registry of this Court accepted his appeal for filing on25 February 2022.[2] As it turns out, the High Court judgment did not mention any application forleave, nor did it grant Mr Malik leave to appeal. Subsequent inquiries made bythis Court indicated that no application for leave had been made to the High Court.[3] In a minute dated 21 June 2022 this Court directed Mr Malik to file amemorandum explaining why he had filed an appeal asserting that leave had beengranted by the High Court when that was not the case.2 The minute stated that if asatisfactory explanation was not provided, his appeal would be struck out under r 44Aof the Court of Appeal (Civil) Rules 2005 (the Rules).3[4] Mr Malik filed a memorandum on 27 June 2022. We have read thatmemorandum. Mr Malik says he is a self-represented litigant. On the matter of leave,he states:Leave to appeal, seriously never heard about that either.[5] We are satisfied leave to appeal was never granted by the High Court.It follows that this Court has no jurisdiction to hear the appeal against the High Courtjudgment.4 The appeal should now be struck out under r 44A of the Rules.[6] If Mr Malik still wishes to pursue this matter, he is still able to apply to theHigh Court for leave to appeal pursuant to s 56(3) of the Senior Courts Act. Given the1 Malik v Syed [2022] NZHC 136.2 Malik v Syed CA92/2022, 21 June 2022 (Minute of Cooper P).3 At [5].4 Senior Courts Act 2016, s 56(3).time that has passed since the High Court judgment of 9 February 2022, Mr Malik willneed to ensure that he applies for an extension of time to apply for leave to appealas well.5 Delays that have occurred in this Court dealing with the matter since27 June 2022 should not be attributed to Mr Malik.[7] If the necessary applications are made to the High Court, it will be for thatCourt to decide whether leave to appeal should be granted.5 An application for leave to appeal should be made within 20 working days after the date of thedecision: High Court Rules 2016, r 26.14; and see Senior Courts Act, s 56(3). The deadline forfiling an application for leave to appeal the High Court judgment was 9 March 2022. However,the High Court may make an order for an extension of time despite that deadline having nowpassed: see High Court Rules, r 1.19.