COLEMAN V ROBERTSON CA CA610/2008

COLEMAN V ROBERTSON CA CA610/2008 4 December 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA610/2008 [2008] NZCA 533BETWEEN HERC ROSS COLEMAN Appellant AND ANNE IVRES ROBERTSON Respondent Hearing: 2 December 2008 Court: Chambers, Ellen France and Baragwanath JJ Counsel: Mr Coleman appears in person Ms Robertson appears in person Judgment: 4 December 2008 at 4.00pmJUDGMENT OF THE COURT A The application for leave to appeal out of time is dismissed. B The appellant is ordered to pay the respondent's usual disbursements, fixed if necessary by the Registrar.____________________________________________________________________REASONS OF THE COURT(Given by Baragwanath J) [1] On 29 April 2008 Associate Judge Doogue gave judgment declining to set aside a bankruptcy notice served on Mr Coleman by Mrs Robertson. On 29 September 2008 Mr Coleman applied for leave to appeal against the judgment out of time. But in the meantime on 15 May 2008 Mr Coleman had paid into Court themoneys claimed under the bankruptcy notice. As a result the bankruptcy proceeding was dismissed on 11 June 2008. [2] Mr Coleman relies on s 26P of the Judicature Act 1908 which empowers a party to any proceedings to appeal to this Court against any order or decision of an Associate Judge other than one made in chambers. He contends that the right of appeal is unconstrained and that he may challenge the reasons given by the Judge for his decision notwithstanding the fact that the bankruptcy proceeding is at an end. The legal position is otherwise. [3] The legal principle was stated by the House of Lords in Sun Life Assurance Co of Canada v Jervis [1944] AC 111. The respondent had an endowment policy of life insurance issued by the appellants. Before taking out the insurance the respondent received from the appellants a document which he claimed described benefits greater than what the policy actually provided and he sought rectification of the policy to make its terms equivalent to the document. The Court of Appeal accepted his submission and made an order for rectification which required payment of an additional sum. Leave to appeal to the House of Lords was given on terms that the appellant should pay both the additional sum resulting from the order for rectification and all the costs and not ask for the return of the money paid to the respondent. Payment was made accordingly. The House of Lords held it should decline to hear the appeal, on the ground that, as a result of the payment, there was no live issue before the Court to be decided between the parties. Viscount Simon LC stated at 113:The difficulty is that the terms put on the appellants by the Court of Appeal are such as to make it a matter of complete indifference to the respondent whether the appellants win or lose. The respondent will be in exactly the same position in either case. He has nothing to fight for, because he has already got everything that he can possibly get, however the appeal turns out, and cannot be deprived of it.[4] In fact the appeal was brought in an attempt to secure a precedent for other cases but that was held to be an inadequate justification for permitting the appeal to continue.[5] Here the challenge to the validity of the bankruptcy notice can bring about no different result, because its effect is wholly spent. The amount claimed in the bankruptcy notice having been paid, the bankruptcy proceeding is at an end and the issue whether the notice was valid has become academic. Accordingly there is no lawful foundation for the proposed appeal. [6] Mr Coleman sought to contend that the case remains live because he wished to challenge the reasons given by the Associate Judge for declining to set aside the notice. But it is well settled that the opinion of a Judge considering the efficacy of a bankrupt notice does not alter the status of the underlying judgment upon which the notice is parasitic: In re Vitoria [1894] 2 QB 387 (CA). [7] It follows that an appeal against the judgment of the Associate Judge is not a vehicle by which the effect of the underlying judgment of the High Court can be challenged. Accordingly the application for leave to appeal must be and is dismissed.