BUTCHER V FINNIGAN AND HORROCKS COA CA133/2012

BUTCHER V FINNIGAN AND HORROCKS COA CA133/2012 [15 June 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA133/2012[2012] NZCA 250BETWEEN CARL DAVID GEORGE BUTCHERAppellantAND PERI FINNIGAN AND ROYHORROCKSRespondentsCA252/2012AND BETWEEN CARL DAVID GEORGE BUTCHERAppellantAND PERI FINNIGAN AND MCDONALDVAGUERespondentsHearing: 12 June 2012Court: Glazebrook, Randerson and Wild JJAppearances: Appellant in personK Rowe for Respondents in both appeals(both by telephone)Judgment: 15 June 2012 at 11 amJUDGMENT OF THE COURTA The appellant's 12 March 2012 application in CA133/2012 for anextension of time to appeal is dismissed.B The appellant's 13 April 2012 application in CA252/2012 for a staypending appeal is dismissed.C The appellant is to pay the respondents' costs for a standard application on a band A basis increased by 50 per cent with usual disbursements for each of the two applications.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)[1] Mr Butcher makes two applications:(a) In CA133/2012, an application dated 12 March 2012 for an extension of time to appeal part only (paragraphs [9], [16] and [17]) of a decision given by Associate Judge Bell on 22 February 2011 in the High Court1 (we will call this „the first application‟).(b) In CA252/2012, an application dated 13 April 2012 for a stay pending appeal of the decision of Associate Judge Bell given on 28 March 2012 in the High Court2 (the second application).[2] The respondents to CA133/2012 are the liquidators of Dragon Flyte Farm Ltd (in liquidation) (the Company). The two applications are made in fraught litigation, the nub of which is a challenge by Mr Butcher to the respondent liquidators‟ decision to claim a farm property at 590 Trounson Park Road, Dargaville as the Company‟sproperty. Although the farm property is registered in the Company‟s name, Mr Butcher maintains that he and his wife are the beneficial owners, or at least have a major beneficial interest. We need not go into the basis for that claim. Mr Butcher also claims that the liquidators have seized other property owned by him personally, including his car.[3] We deal first with the first application made by Mr Butcher. In the 22 February 2011 decision that Mr Butcher seeks to appeal, Associate Judge Bell appointed new liquidators and (to avoid any doubt or misunderstanding) also made a fresh order placing the Company into liquidation. The decision records that those1 Butcher v Bennett and Hoyle HC Auckland CIV-2010-488-630, 22 February 2011.2 Finnigan and Horrocks v Butcher HC Auckland CIV-2011-488-301, 28 March 2012.orders were made with Mr Butcher‟s agreement. Mr Butcher had taken exception to the first appointed liquidators. We note that neither of the Associate Judge‟s orders appears in any of the three paragraphs that Mr Butcher seeks to appeal.[4] The first application is made pursuant to r 29A of the Court of Appeal (Civil) Rules 2005. The considerations on a r 29A application are well established. The first is the length of the delay and the reasons for it. The delay here is approximately one year. Mr Butcher explains the delay by stating "I am not legally aided and soloFather of four children while this process has stolen all my personal belongings,cattle etc". Mr Butcher accepts that he only applied for legal aid on 23 February 2012. He has not provided an adequate explanation for his delays both in seeking legal aid and in pursuing the appeal he seeks to bring.[5] The second relevant consideration is the extent of prejudice caused by the delay. It is sufficient to say that the liquidation of the Company has been proceeding for over a year. Obvious prejudice will result if the order appointing the liquidators is now set aside.[6] The next, and here perhaps the most important, consideration is the merits of the proposed appeal. We consider it has none. First, Mr Butcher is seeking to appeal against orders he consented to, indeed which he instigated by objecting to the first appointed liquidators. This Court views an application to set aside a consent order with considerable caution. It will only be prepared to disturb such an order if the interests of justice require it, and only if a good ground or grounds is established. Examples of such a good ground are an order that was not in fact made with the consent of the party challenging it, or an order founded on an agreement vitiated by mistake. These principles have been recently reiterated by this Court in Kain v Hutton3 and, earlier, in Phillips v Phillips.4[7] Mr Butcher does not suggest the orders he seeks to appeal were made without his consent, and nor does he suggest vitiating mistake or anything of the kind. It is not that Mr Butcher did not squarely consent to the appointment of the present3 Kain v Hutton [2007] NZCA 199, [2007] 3 NZLR 349 at [230]–[231].4 Phillips v Phillips [1993] 3 NZLR 159 (CA) at 172.liquidators. It is just that he does not agree with the liquidator‟s treatment of theTrounson Park Road farm property and other items that he claims are his personal property.[8] As far as the Trounson Park Road property is concerned, the Associate Judge held in the judgment he delivered on 27 April 2012 that the Company is the owner of that property.5 Mr Butcher filed an appeal against that judgment on 10 May 2012. That appeal was brought in time and is proceeding in the ordinary way. That appealwill give Mr Butcher an avenue to contest the Associate Judge‟s findings as to theownership of the Trounson Park Road property. However, this first application for an extension of time to appeal is an entirely misconceived way to challenge that 27 April 2012 judgment, or the liquidators seizing of any other property Mr Butcher claims is his.[9] The only element of public interest in Associate Judge Bell‟s 22 February2011 decision which Mr Butcher seeks to appeal is that the liquidation continue smoothly because it involves the interests of the shareholders and creditors of the Company.[10] To summarise, after an unexplained and prejudicial delay of approximately a year, Mr Butcher applies for an extension of time to bring a meritless appeal. For those reasons we dismiss Mr Butcher‟s first application.[11] We turn to Mr Butcher‟s second application. This application is effectively an appeal against Associate Judge Bell‟s 28 March 2012 ruling, declining to delaythe hearing of the two applications (one by Mr Butcher, the other by the liquidators), which had been set down for hearing before the Associate Judge that day. Having declined to delay the hearing, the Associate Judge proceeded with it and has now given the judgment he delivered on 27 April 2012, referred to in [8] above. That is the judgment that Mr Butcher appealed on 10 May. Thus, this second application has been overtaken by events. It is now moot, and pointless. For that reason, wealso dismiss Mr Butcher‟s second application.5 Finnigan v Butcher [2012] NZHC 810.[12] The liquidators have made clear their concern at the cost, to the Company inliquidation, of Mr Butcher‟s many applications. The liquidators have had to respond to each of the applications. Ultimately, the cost of their doing that will fall on theCompany‟s creditors. In a minute on 9 May the Court took the trouble to spell out to Mr Butcher its concern that his two applications lacked merit, and to invite Mr Butcher to consider carefully whether there was any point in pursuing them. Mr Butcher was undeterred and we have now dismissed both applications.[13] In those circumstances, Mr Butcher is to pay the liquidator‟s costs for astandard application on a band A basis, increased by 50 per cent, but with usual disbursements, for each of the two applications. In other words, Mr Butcher is to pay the liquidators two sets of increased costs.Solicitors:McElroys, Auckland for the Respondents