JONES v NEW ZEALAND BLOODSTOCK FINANCE & LEASING LIMITED [2023] NZCA 169 [12 May 2023]

JONES v NEW ZEALAND BLOODSTOCK FINANCE & LEASING LIMITED [2023] NZCA 169[12 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA372/2022[2023] NZCA 169BETWEEN GREGORY JOHN JONESAppellantAND NEW ZEALAND BLOODSTOCKFINANCE & LEASING LIMITEDRespondentCourt: Brown and Mallon JJCounsel: Appellant in personF A King for RespondentJudgment:(On the papers)12 May 2023 at 12.30 pmJUDGMENT OF THE COURTThe application under r 43(2) of the Court of Appeal (Civil) Rules 2005 isdeclined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] In a judgment dated 5 June 2020 granting summary judgment in favour of therespondent against the appellant, the quantification of costs was left undetermined.11 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 1233 [Summaryjudgment].In the judgment under appeal, Jagose J quantified the amount of solicitor/client costspayable by the appellant.2 On 21 July 2022 the appellant filed a notice of appeal.[2] However he failed to comply with the requirements of r 43(1) of the Court ofAppeal (Civil) Rules 2005 (the Rules) by applying for the allocation of a hearing dateand filing the case on appeal. Consequently his appeal was treated as having beenabandoned after three months, namely on 21 October 2022. The appellant now appliesfor an extension of time under r 43(2) which, if granted, would have the effect ofreinstating his appeal.3 The respondent opposes his application.Relevant background[3] Litigation between this appellant and respondent has reached this Court fourtimes: CA350/2020, CA538/2020, CA19/2022, and CA372/2022 (the present appeal).We will first set out this litigation history.[4] The respondent's application for summary judgment was heard on26 May 2020. Judgment was delivered on 5 June 2020.4 On 9 July 2020 Jagose Jdelivered a further judgment both declining leave to appeal against his decisions onvarious interlocutory applications made by the appellant and refusing a stay ofexecution of the summary judgment.5[5] On 3 July 2020 the appellant filed a notice of appeal against the summaryjudgment (CA350/2020). On 7 September 2020 he filed an application for leave toappeal against the interlocutory rulings, seeking five orders (CA538/2020).[6] On 16 November 2021 the appellant filed a proceeding against 16 nameddefendants, including the respondent, in addition to "unknown defendants" alleging,among other things, an unlawful conspiracy to cause him financial harm by nine ofthose defendants. On 29 November 2021 Venning J delivered a judgment striking out2 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2022] NZHC 1477 [Judgment underappeal].3 See r 43(7).4 Summary judgment, above n 1.5 New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 1633 at [25].a number of the causes of action as an abuse of process.6 On 17 January 2022 theappellant filed an appeal against that decision (CA19/2022).[7] On 23 June 2022 Jagose J delivered the judgment7 which is the subject of thepresent appeal (CA372/2022).The application for an extension of time[8] On 25 July 2022 the appellant was advised by the Registry thatsecurity for costs had been set at $7,060 payable by 18 August 2022. He was alsoadvised of the requirements of r 43 and the implications of a failure of compliance by21 October 2022.[9] The appellant did not pay security for costs by 18 August 2022. By letter dated21 September 2022 he was reminded that his appeal would be automatically deemedabandoned under r 43(1) if he did not apply for the allocation of a hearing date andfile the case on appeal by 21 October 2022. He was also informed that he could notapply for the allocation of a hearing date if security for costs remained unpaid.[10] On 3 October 2022 the appellant filed an application to dispense with securityfor costs. A decision declining that application was delivered by the Deputy Registraron 19 October 2022. On 16 November 2022 the appellant filed a memorandumseeking a review by a Judge of the Deputy Registrar's decision refusing to dispensewith security for costs under r 5A(3) of the Rules. However in the interim, on22 November 2022, his appeal was deemed abandoned for failure to comply with r 43.When advised of this the appellant replied that he understood the appeal process wasstayed until the security for costs issue had been dealt with.[11] When the procedure specified in r 43(1B)(c) of the Rules was drawn to hisattention, the appellant replied:6 Jones v New Zealand Bloodstock Finance & Leasing Ltd [2021] NZHC 3220.7 Judgment under appeal, above n 2.Reference to McGechan see 6/642 – CR 35.03 indicates,"An application under (35)6 stops the 35(2) time running".It goes with out saying it would seem to me, that a review of the registrarunder Rule 5(2) has a similar effect and as a result the whole appeal processis stayed otherwise the court could skupper an appeal through its own delayswhich can't be an acceptable outcome. Do you have any authority to supportthis unusual outcome?[12] The following day he sent a further email in the following terms:This process is under the control of the registrar to some degree and so, as aresult, the means by which we [the registrars and litigants] communicate andare bound to respond is in accordance with the principles of natural justice.I cite that by way of an example in slight contra-distinction to the manner inwhich litigants are bound to communicate with Judges through memorandaand Judges respond as they see fit, but bound again by the same guidingprinciples.The purpose of that slight detour is to explain that [I] wrote to the registraryesterday saying this matter is currently under the control of a Court of appealJudge who is bound to carry out a review of the decision previously reached.The point [I] made in my recent correspondence was that [I] am of the viewthat time in relation to the appeal process stands still as it must while theregistrar considers an application to defer security and so as a matter [of] logicso must it stand still when a further review is underway. That letter requireda response in my view and it is entirely in appropriate to send me back a noticeof result with out providing me with a response so [I] can consider the reasonsfor the view held by the registrar, before further assessing whether anapplication is necessary. I would be grateful for an answer to my letter andalso some indication of whether the judge/judges considering my reviewconsider themselves functus officio and if so on what basis.I look forward to your early response. I should not need to make anunnecessary application if there has been a mistake.[13] On 5 December 2022 the appellant filed the application for extension of timeunder r 43(2), which is the subject of this judgment.Relevant principles[14] As this Court explained in Yarrow v Westpac New Zealand Ltd,8 the decisionof the Supreme Court in Almond v Read, although concerned with r 29A of the Rulesrather than r 43, applies to any interlocutory application for an extension of time wherethere is a right of appeal.98 Yarrow v Westpac New Zealand Ltd [2018] NZCA 601 at [4].9 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.[15] The ultimate question when considering the exercise of the discretion to grantor decline an extension of time is what the interests of justice require. Factorsidentified as likely to require consideration include:10(a) the length of the delay;(b) the reasons for the delay;(c) the conduct of the parties, particularly of the applicant;(d) any prejudice or hardship to the respondent or to others witha legitimate interest in the outcome; and(e) the significance of the issues raised by the proposed appeal, both to theparties and more generally.[16] While the Court recognised that the merits of an appeal may, in principle, berelevant to the exercise of the discretion to extend time, a decision to refuse anextension of time based substantially on that ground should be made only where theappeal is clearly hopeless. The lack of merit must be readily apparent.11Discussion[17] The appellant submits that his application for extension of time was filedwithin a matter of days of the time limit expiring. Although that is something of anexaggeration, we accept that the delay in filing the extension application was notsignificant.[18] In his submissions the appellant says that he overlooked the need to proceedwith the appeal and incorrectly assumed that time would stand still until there was adecision given on the review of the Deputy Registrar's decision declining to dispensewith security for costs.10 At [38].11 At [39(c)].[19] We are unable to accept the proposition that the appellant assumed (incorrectly)that time would stand still. The appellant is a barrister who is familiar with theprocesses of this Court, particularly due to the series of appeals he has brought tothis Court arising from his commercial relationship with the respondent. We note thatin the first appeal (CA350/2020), where the appellant filed an application to reviewthe Deputy Registrar's decision declining to reduce security for costs, the appellantfiled an application under r 43(1B)(c) seeking an extension for one month tothe r 43(1) period. That application was granted with time being extended until5 November 2020. On delivery of the review decision on 22 October 2020,the appellant filed an application under r 43(2) for an extension of the time to complywith r 43(1). That extension of time was eventually granted in a decision dated26 May 2021.12 The Court stated that no further extensions would be granted.13[20] In the same judgment, CA538/2020 was struck out as an abuse of process.14The context to that order is as follows. On 18 November 2020, a direction had beengiven that it was the Court's intention to consider making an order striking outCA538/2020 because it was an abuse of process, given that it raised matters whichshould be addressed in the extant appeal CA350/2020.15 However, notwithstandingthat direction, the appellant sought to proceed with CA538/2020, contending that thesubject of that appeal should be dealt with in the absence of any consideration of thesummary judgment.16 This Court observed:[15] It appears from the papers that it is this last consideration thatmotivated Mr Jones's decision to file a separate appeal, by leave, againstdecisions made on 20 and 25 May; he wanted to wind the clock back and havethat appeal heard without reference to the merits of the summary judgmentapplication. He has argued that the Court should hear them "in the context inwhich they were made and at the time they were made". He now accepts theymust be heard together but evidently continues to perceive some advantage inhaving them separately intituled. It is an advantage that eludes us.12 Jones v New Zealand Bloodstock Finance & Leasing Ltd [2021] NZCA 213 [Joint appealjudgment] at [45(b)].13 At [45(b)].14 At [45(a)].15 Jones v New Zealand Bloodstock Finance & Leasing Ltd CA538/2020, 18 November 2020(Minute 2 of Brown J) at [6].16 Joint appeal judgment, above n 12, at [14].[21] The Court stated that the appellant ought to have known better than to fileCA538/2020 and that his persistence in the face of judicial direction wasinexplicable.17 The Court considered that his behaviour had delayed the progress ofCA350/2020, an outcome for which he alone was responsible, and imposedunnecessary burdens on the Court and the respondent.[22] In CA19/2022 security for costs was set at $120,020 and the appellant wasadvised that non-compliance with r 43(1) by 19 April 2022 would result in his appealbeing automatically deemed abandoned. On 19 April 2022 the appellant applied underr 35(6)(c) for security for costs to be dispensed with and under r 35(10) for anextension of time to make that application. As the respondents who filed notices ofappearance all confirmed they did not wish to participate in the appeal, theDeputy Registrar granted the extension of time and made the order dispensing withsecurity for costs.[23] However the Deputy Registrar noted that the appeal had been deemedabandoned on 26 April 2022 and that an interlocutory application for extension of timewould be required to reinstate it. The appellant applied for an extension of time offive working days under r 5A(1)(c)(ii) of the Rules in order to do so. That extensionwas granted. On 11 May 2022 the appellant then applied for an extension of timeunder r 43(2). As that application was not opposed the Deputy Registrar made anorder under r 5A(1)(c)(i) extending the time for complying with r 43 until19 July 2022. However the appellant did not comply with r 43(1) within that extendedperiod and the appeal was deemed abandoned (for a second time) as at 20 July 2022.Conclusion[24] Given the lengthy course of this litigation and the nature of the variousapplications which the appellant has made in the context of his previous appeals, weconsider that his explanation for his failure to comply with r 43(1) in CA372/2022 isimplausible. We accept the respondent's submission that the extension sought wouldbe prejudicial in compounding the delays which have already occurred in this litigationas a consequence of the appellant's conduct.17 At [24].[25] The substance of the appeal, namely the quantification of solicitor/client costswhich are payable pursuant to the parties' contractual arrangements, does not raise anissue of significance, either for the parties or more generally.[26] Weighing these considerations, we do not consider that the interests of justicewarrant the grant of an extension of time to comply with r 43(1).Result[27] The application for an extension of time under r 43(2) of the Rules is declined.Solicitors:McKenna King Dempster, Hamilton for Respondent