SGARGETTA v ASB BANK LIMITED [2018] NZCA 540

SGARGETTA v ASB BANK LIMITED [2018] NZCA 540 [3 December 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA85/2018[2018] NZCA 540BETWEEN ELLIOT DANIEL SGARGETTAAppellantAND ASB BANK LIMITEDRespondentCourt: Brown and Clifford JJCounsel: Appellant in PersonA E Simkiss and J J K Spring for RespondentJudgment:(On the papers)3 December 2018 at 12 pmJUDGMENT OF THE COURTA The application for an extension of time to apply for the allocation ofa hearing date and to file the case on appeal is granted.B Mr Sgargetta must take these steps by 15 February 2019.C The application for stay is declined.D There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] Mr Sgargetta is appealing against a decision of Woodhouse J grantingASB Bank Ltd (ASB) summary judgment in respect of the balance of a series of loansinvolving three companies, Sleep Overs Ltd, Evergreen Lodge Ltd andRemarkables Lodge Ltd (all in liquidation).1 The loans were guaranteed byMr Sgargetta, a director of each of the companies.[2] This is an application by Mr Sgargetta for an extension of time under r 43(2)of the Court of Appeal (Civil) Rules 2005 (the Rules) within which to apply fora hearing date and to file the case on appeal.[3] The application is opposed by ASB on the grounds that Mr Sgargetta has notprosecuted his appeal diligently and the appeal lacks merit.Background[4] Mr Sgargetta's appeal has a complicated procedural history. It was originallyfiled out of time. An application for an extension of time was granted, requiringMr Sgargetta to file a notice of appeal that clearly and concisely identified his specificgrounds of appeal, and to pay security for costs within 20 working days of the dateupon which that notice was filed. However, the Judge noted that if Mr Sgargettaapplied for legal aid and his application was declined he was to pay security for costswithin 10 working days of that decision.2 If he did not do so, his appeal would bestruck out.[5] Mr Sgargetta's application for legal aid was initially declined. He did not paysecurity for costs within 10 workings days of that decision. Rather, he filed anapplication for review of the legal aid decision. In the context of that application, thisCourt extended the date for the filing by Mr Sgargetta of his detailed notice of appealto 22 June 2018.3 Mr Sgargetta complied with that requirement on 22 June 2018.[6] On that basis, the three-month periods under each of rr 43(1) and 43(3) became22 September 2018 and 22 December 2018 respectively, a matter overlooked bythe Court for some time. That fact, and its implications, were recorded in a minute ofBrown J of 3 October 2018.4 At that point Mr Sgargetta, although he had filed his1 ASB Bank Ltd v Sgargetta [2017] NZHC 3097.2 Sgargetta v ASB Bank Ltd CA85/2018, 15 March 2018 (Minute of Brown J).3 Sgargetta v ASB Bank Ltd CA85/2018, 8 June 2018 (Minute No 2 of Brown J).4 Sgargetta v ASB Bank Ltd CA85/2018, 3 October 2018 (Minute No 4 of Brown J).notice of appeal as required, had neither paid security for costs nor, as he could not inthat situation, filed his case on appeal or made an application for a hearing date.He had, however, filed this application for an extension of time. As Brown J noted inhis minute, this application was not rendered otiose because Mr Sgargetta was stillchallenging the requirement he pay for security for costs and, therefore, did not in factfile his case on appeal or apply to have it set down before the three-month periodstipulated by s 43(1) had expired (namely 22 September 2018).[7] On 25 October 2018, Gilbert J reduced security for costs to $1,000, to be paidby 22 November 2018.5 Mr Sgargetta paid that amount on 20 November 2018.AnalysisExtension of time[8] Mr Sgargetta seeks an extension of time on the grounds that he has prosecutedhis appeal diligently, and the need for an extension of time has arisen as a result ofconfusion and misdirection by the Registry and the Court. The application is opposedby ASB on the grounds that Mr Sgargetta has not prosecuted his appeal diligently andthe appeal lacks merit.[9] Rules 43 provides:43 Appeal abandoned if not pursued(1) An appeal is to be treated as having been abandoned if the appellantdoes not apply for the allocation of a hearing date and file the case onappeal within 3 months after the appeal is brought.(2) The Court, on application, may—(a) grant an extension of the period referred to in subclause (1);and(b) grant 1 or more further extensions of any extended period.(3) An application for the grant of an extension may be made before theexpiry of the period to which the application relates or within3 months after that expiry; but no extension may be granted on anapplication that is made later than 3 months after that expiry.5 Sgargetta v ASB Bank Ltd [2018] NZCA 451.(4) This rule overrides rules 5(2) and 6.(5) If any days in the period commencing on 25 December in one yearand ending on 15 January in the next year are comprised in the3-month period calculated in accordance with subclause (1) orsubclause (3), that 3-month period is extended by the number of thosedays.[10] In Schmidt v Ebada Property Investments Ltd this Court identifiedthe following factors as relevant to the discretion to extend time under r 43(2):6(a) the reason why the appeal has not been prosecuted diligently; and(b) the merits of the appeal. Time will not be extended for an appeal thatis not "genuinely arguable".7[11] In Rabson v Gallagher this Court said that self-represented litigants (such asMr Sgargetta) must be permitted some latitude in compliance with case managementrequirements if overall justice is to be done.8[12] The key hurdle to Mr Sgargetta's compliance with r 43 has been the issue ofsecurity for costs. He has taken reasonable steps to address that issue. That issue hasonly recently been resolved. We note ASB's repeated submission that little else hasoccurred. Nevertheless, Mr Sgargetta has now paid the required security for costs.On that basis, we consider it appropriate to grant him an extension of time pursuant tor 43(2).[13] Mr Sgargetta's appeal will be treated as having been abandoned if he does notapply for the allocation of a hearing date and file a case on appeal by15 February 2019. We emphasise that this is a final indulgence.Stay[14] Mr Sgargetta also requests a stay of the High Court judgment. Mr Sgargettahas previously requested that the High Court judgment be stayed in the variousmemoranda he has filed in this Court. On 3 October 2018, Brown J told Mr Sgargetta6 Schmidt v Ebada Property Investments Ltd [2012] NZCA 452 at [7].7 Russell v Commissioner of Inland Revenue (2006) 22 NZTC 19,807 (CA) at [10].8 Rabson v Gallagher [2011] NZCA 204 at [9].that, if he wants to pursue a stay, he should file a formal document setting out hisgrounds.9 He does not appear to have done so. We note that the High Court declinedan application for stay in that Court on 17 August 2018.10 In these circumstances wedecline the requested stay.Result[15] The application for an extension of time to apply for the allocation of a hearingdate and to file the case on appeal is granted.[16] Mr Sgargetta must take these steps by 15 February 2019.[17] The application for stay is declined.[18] There is no order for costs.Solicitors:MinterEllisonRuddWatts, Auckland for Respondent9 Sgargetta v ASB Bank Ltd, above n 4, at [17]–[18].10 ASB Bank Ltd v Sgargetta [2018] NZHC 2061.