SCHUTT v DEBT BUYERS LIMITED [2018] NZCA 214

SCHUTT v DEBT BUYERS LIMITED [2018] NZCA 214 [25 June 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA53/2018[2018] NZCA 214BETWEEN KARL WILLIAM SCHUTTApplicantAND DEBT BUYERS LIMITEDRespondentHearing: 11 June 2018Court: Winkelmann, Clifford and Williams JJCounsel: Applicant in personJ Ussher for RespondentJudgment: 25 June 2018 at 3.00 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B We make no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)[1] Mr Schutt applies under r 29A of the Court of Appeal (Civil) Rules 2005 foran extension of time to appeal the judgment of Woodhouse J upholding the claim ofDebt Buyers Ltd (DBL) to $373,225.63 plus interest and costs.1 Mr Schutt's notice ofappeal may be read as referring both to that judgment and an earlier judgment ofAssociate Judge Sargisson.2 Given that Woodhouse J's subsequent judgment1 Debt Buyers Ltd v Schutt [2017] NZHC 2876.2 Debt Buyers Ltd v Schutt [2016] NZHC 3166, declining the respondents' application for summaryjudgment in the same proceeding.concluded the proceeding, it is his judgment that is in substance appealed. The appealwas thus filed 13 days out of time.3[2] DBL opposes the extension. DBL does not argue that the late filing is asufficient ground alone to decline the extension. It could hardly have done so in lightof the principles set out in Almond v Read.4 As the Supreme Court in that case madeclear, relatively minor breaches of filing deadlines are likely to be forgiven in casesinvolving an appeal as of right.5 In this case a 13-day breach is properly seen as minoras it involves no particular prejudice to DBL. DBL responsibly accepted as much.[3] Instead DBL argues that the appeal is hopeless on the merits and the applicationshould be declined for that reason. But as the Supreme Court said in Almond v Read,applications to extend time for relatively minor breaches are not the place for closeassessment of the merits of an appeal.6 Such arguments will not normally succeedunless the case is very weak or very strong.7 Examples of weak cases offered by theCourt were proceedings unwinnable even on unchallenged facts; where there is nojurisdiction to consider the claim; where the appeal is an abuse of process; or theappeal is frivolous or vexatious.8[4] This appeal is essentially about the correct interpretation of a settlementagreement. It plainly does not meet the description of hopeless from the outset.DBL's opposition in this respect is misconceived.[5] The application for an extension of time to appeal is granted accordingly.[6] As the applicant is self-represented, there will be no order for costs.3 In his notice of appeal, Mr Schutt said the appeal was filed just one day late, but this is in error.The judgment was issued on 22 November 2017. The appeal period expired on 20 December2017. The notice of appeal and application to extend time were received by this Court on30 January 2018. Taking into account the Christmas holiday period, this makes it 13 days out oftime.4 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].5 At [37].6 At [37].7 At [39(c)].8 At [39(c)].