GLW GROUP LTD (IN LIQ) v LEPIONKA & CO INVESTMENTS LTD [2019] NZCA 24

GLW GROUP LTD (IN LIQ) v LEPIONKA & CO INVESTMENTS LTD [2019] NZCA 24 [28 February 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA60/2018[2019] NZCA 24BETWEEN GLW GROUP LIMITED (INLIQUIDATION)AppellantAND LEPIONKA & COMPANYINVESTMENTS LIMITEDFirst RespondentLEPIONKA & COMPANY LIMITEDSecond RespondentSTEFAN JOZEF JOHN LEPIONKA ANDNIGEL WARREN HUGHES ASTRUSTEES OF THE SJ LEPIONKAFAMILY TRUSTThird RespondentsSTEFAN JOZEF JOHN LEPIONKAFourth RespondentCourt: Cooper and Brown JJCounsel: D W Grove for AppellantM D O'Brien QC and M G Colson for RespondentsJudgment:(On the papers)28 February 2019 at 11.30 amJUDGMENT OF THE COURTA The applications for the joinder of Mr Paterson and LW354 Ltd asappellants are declined.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] On 21 December 2018 a notice of abandonment of this appeal was filed.It recorded the respondents consented to the appeal being discontinued and that therewas no issue as to costs. The notice was in the standard form, and contained noticethat the appellant did not intend to prosecute the appeal further, abandoned all furtherproceedings concerning the appeal and discontinued the proceeding.[2] However, on 20 December 2018, Mr Garth Paterson filed a memorandumwhich amounted effectively to an application that he be added as an appellant.Mr Paterson had been a party to the proceeding in the High Court, whereGLW Group Ltd was the first plaintiff and Mr Paterson the second.1 AlthoughGLW Group Ltd appealed, Mr Paterson did not. The appeal was filed on2 February 2018, and Mr Paterson took no steps in respect of this appeal until filinghis memorandum on 20 December 2018.[3] In Humphries v Carr, there was discussion of the effect of a notice ofabandonment.2 In that case, the appellant who had abandoned the appeal sought to setaside the notice of abandonment as a consequence of subsequent developments inlitigation in the High Court. The majority, Glazebrook and Ellen France JJ, noted thatthe effect of abandonment of a civil appeal under r 44 of the Court of Appeal (Civil)Rules 2005 had not been authoritatively determined. They found it unnecessary toreach a final view on that issue because whether or not abandonment led to dismissal,the applicant who wished to have his or her notice of abandonment set aside wasrequired to meet a high threshold.3 It was not met in that case. William Young P tookthe view it was clear that abandonment under r 44 was not tantamount to a dismissalof the appeal, and consequently did not give rise to a res judicata. As he put it:4Rather, it simply terminated the original appeal. On this approach the issue iswhether to extend time for lodging a further appeal.1 AFI Management Pty Ltd v Lepionka & Co Investments Ltd [2017] NZHC 3116.2 Humphries v Carr [2009] NZCA 608.3 At [17].4 At [27].[4] We are not concerned in the present case with any issue of deemed dismissalor res judicata. Nor is this a case where the party filing the notice of discontinuanceseeks to set it aside. In this case, the applicants are not parties to the appeal, and weare simply required to consider whether, the sole appellant having abandonedthe appeal under r 44 by means of a complying notice, an application to be added asan appellant filed by another party immediately prior to the notice of abandonmentbeing filed can have the effect of keeping the appeal on foot.[5] In accordance with the judgment of William Young P in Humphries v Carr, weconsider the effect of a notice filed under r 44(1) is to terminate the appeal. Once anappeal is filed, the question of whether any party should be added is one that wouldhave to be considered and determined by the court. Mr Paterson's memorandum of20 December had not been considered and could not, by the mere act of filing it, havethe effect of adding him as a party to the appeal. That is especially so since, as is plain,the actual parties to the appeal would have opposed the addition of an appellant.Mr Paterson's memorandum was not in our view effective to keep the appeal on foot.[6] Mr Paterson's memorandum has led to a voluminous exchange of memorandabetween him and counsel for the appellant and the respondents. Another party,LW354 Ltd has now also filed a memorandum in which it too seeks to be added tothe appeal. Its ability to do so has been challenged by counsel for the parties to theabandoned appeal and has led to a further exchange of memoranda.[7] We do not need to examine the detail of the various memoranda filed. But wemake two observations about the material relied on. First, insofar as Mr Paterson isconcerned, the argument that he purports to raise as a trustee in respect of an interestin property on behalf of his two sons involves issues that were not canvassed in thelitigation in the High Court. As Mr O'Brien QC notes in his memorandum of23 January 2019, Mr Paterson made no attempt either prior to or at the High Courttrial to raise causes of action or arguments based on a trust arrangement involving himor his sons. We conclude that even if there were jurisdiction to grant the applicationfor him to be added as an appellant, there would be no point in doing so because theissue he seeks to pursue was not one determined by the High Court. This Court sitsonly as a court of appeal.[8] Similarly, in relation to LW354 Ltd, although there is a tension between thefactual circumstances alleged by Ms Elizabeth O'Neil and counsel acting forLW354 Ltd, it appears to be suggested that there were relevant trustee obligationssomehow transferred from Mr Paterson to LW354 Ltd subsequent to13 November 2018.[9] The judgment of Fitzgerald J under appeal was delivered on14 December 2017. To the extent that LW354 Ltd's argument appears to rest on thesame trusts that Mr Paterson asserts in favour of his sons, once again the argumentswere not presented to the High Court. But in the case of LW354 Ltd, it was notincorporated until 13 November 2018, 11 months after the judgment was deliveredand nine months after the notice of appeal was filed.[10] These would be unpromising contextual circumstances for any argumentrelying on an asserted discretionary power of the court to add an appellant once thesole appellant on the record had abandoned an appeal. We would not exercise thatdiscretion in favour of Mr Paterson or LW354 Ltd, even if it existed.[11] However, we are satisfied the jurisdiction does not exist. We declinethe applications for the joinder of Mr Paterson and LW354 Ltd as appellantsaccordingly.[12] As costs have not been sought, there is no order as to costs.Solicitors:Bell Gully, Wellington for Respondents