MOULTON V AUCKLAND COUNCIL COA CA494/2011
Leave to appeal out of time was declined because the application was approximately 15 years out of time without a proper explanation and would unfairly prejudice the respondent, particularly as it sought to raise fresh issues; finality in litigation required refusal.
Source-derived case information.
- Citation
- COA CA494/2011
- Parties
- Applicant: Gary Moulton; Respondent: Auckland Council
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 28 October 2011
- Procedural Posture
- Application for Special Leave to Appeal Out of Time / Court of Appeal Decision on Application
- Outcome
- Application for special leave to appeal out of time declined
- Legal Topics
- Special Leave, Extension of Time, Finality of Litigation, Prejudice, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gary Moulton
Applicant
Auckland Council
Respondent
Procedural Posture
Application for Special Leave to Appeal Out of Time / Court of Appeal Decision on Application
Legal Issues
- 1 Whether to grant special leave to appeal out of time from a 1995 judgment
- 2 Whether the applicant provided a satisfactory explanation for a 15‑year delay
- 3 Whether new issues not raised in the original proceedings may be permitted at this late stage
Ratio Decidendi
Leave to appeal out of time was declined because the application was approximately 15 years out of time without a proper explanation and would unfairly prejudice the respondent, particularly as it sought to raise fresh issues; finality in litigation required refusal.
Court Disposition
Application for special leave to appeal out of time declined
Orders
- Applicant to pay respondent costs for a standard application on a Band A basis
- Applicant to pay respondent usual disbursements
Full Case Text
Judgment text and source record
1 paragraphs
MOULTON V AUCKLAND COUNCIL COA CA494/2011 28 October 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA494/2011[2011] NZCA 540BETWEEN GARY MOULTONApplicantAND AUCKLAND COUNCILRespondentHearing: 20 October 2011Court: Glazebrook, Arnold and Ellen France JJCounsel: Appellant in personS Fraser for RespondentJudgment: 28 October 2011 at 10:30 AMJUDGMENT OF THE COURTA The application for special leave to appeal out of time is declined.B The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.REASONS OF THE COURT(Given by Glazebrook J)[1] Mr Moulton applies for leave to appeal out of time against a judgment of Morris J delivered on 15 September 1995.1[2] Lang J in the High Court refused Mr Moulton's application for an extensionof time to appeal to this Court.21 Moulton v Auckland Regional Council HC Auckland HC69/95, 15 September 1995.2 Moulton v Auckland Council HC Auckland CIV-2010-404-7767, 30 June 2011.[3] The application is some 15 years out of time and no proper excuse has been provided for a delay of such magnitude. Finality in litigation is important, especially after such a long period.[4] Further, as pointed out by Lang J, Mr Moulton now seeks to raise issues that were not raised before Morris J. This would cause prejudice to the respondent who should not now have to face fresh issues not canvassed in the original appeal.[5] In the circumstances the application for special leave to appeal out of time is declined.[6] The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.Solicitors:BurnsFraser, Auckland for Respondent