PHILPOTT v NOBLE INVESTMENTS LIMTED CA200/2013, CA274/2013 [2014] NZCA 104

PHILPOTT v NOBLE INVESTMENTS LIMTED CA200/2013, CA274/2013 [2014] NZCA 104 [28 March 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA200/2013CA274/2013 [2014] NZCA 104BETWEEN SHAYNE PHILPOTTFirst AppellantNEW ZEALAND TRUSTEE SERVICES LIMITEDSecond AppellantCOLIN PETER STOKESThird AppellantFAY EUNICE RICHARDSONFourth AppellantBURNSIDE TRUSTEES LIMITEDFifth AppellantGREGORY ROBERT SMITHSixth AppellantAND NOBLE INVESTMENTS LIMITEDRespondentHearing: 17 March 2014Court: Stevens, White and French JJCounsel: W J Palmer and J M Silcock for AppellantsP B McMenamin for RespondentJudgment: 28 March 2014 at 10.00 amJUDGMENT OF THE COURTA The application for an extension of time to bring an appeal in CA200/2013 is granted.B The application for an extension of time to apply for the allocation of a hearing date and to file the case on appeal in CA274/2013 is granted.C The two appeals are consolidated.D The appellants are to file and serve the case on appeal, attend to any other outstanding matters, including security for costs, and seek a fixture for the hearing of the consolidated appeals within 20 working days of the date of this judgment.E Any cross-appeal by the respondent is to be filed and served within 20 working days of the date of this judgment.F All questions of costs, in respect of both applications, are reserved pending the outcome of the appeals.____________________________________________________________________REASONS OF THE COURT(Given by White J)[1] The appellants are seeking to pursue appeals against two High Court judgments relating to caveats they lodged to protect certain interests asserted over various Lots in a subdivision being undertaken by the respondent, Noble Investments Ltd (Noble). 1[2] The first judgment, delivered by Associate Judge Osborne on 28 June 2012, contained orders that two caveats should not lapse, but also reserved leave to the parties to apply in relation to the following matters:(a) a condition that one of the caveats should lapse insofar as it affected one Lot;(b) the ability of Noble to have the proceeding brought on for the making1 Philpott v Noble Investments Ltd [2012] NZHC 1431 [first judgment] and Philpott v Noble Investments Ltd [2013] NZHC 400 [second judgment].of orders that the caveats, insofar as they related to "the balance of land" in four specified Lots, "should lapse" in the event that a "spine road" vested in the Christchurch City Council and Noble had registered certain easements;(c) the ability of Noble to apply to the Court for an order that the caveats lapse in relation to titles for land unaffected by stormwater drainage in the event that Noble demonstrated to the caveators or the Court that a route for stormwater drainage from one Lot had been secured other than over the caveated property;(d) a requirement that the parties meet to consult as to outcomes which would resolve all or some of the issues raised, including but not limited to certain specified issues; and(e) the adjournment of the application to 3 December 2012. 2[3] The appellants did not exercise their right to appeal against the first judgment within the time set by r 29(1) of the Court of Appeal (Civil) Rules 2005 (the Rules) (by 26 July 2012). Instead, as a result of interlocutory applications made by the appellants and respondent relating to the first judgment, there was a further hearing before Associate Judge Osborne on 13 and 14 February 2013, which led to the delivery of the second judgment on 5 March 2013.[4] In the second judgment the Associate Judge made orders adding a further condition to the orders relating to the lapsing of one of the caveats, amended in various respects the wording of other aspects of the matters covered in the first judgment and dismissed various applications made by the appellants in respect of those matters. 32 Subsequently brought forward for mention to 4 September 2012 (shortly after the anticipated vesting of the spine road) by minute of Associate Judge Osborne of 28 June 2012 (dated 1 May 2012 in error).3 The Associate Judge reserved costs, subsequently awarding costs and disbursements of $14,500 against the respondent for steps taken by the appellants up to 28 June 2012 and making no order for costs after that date: Philpott v Noble Investments Ltd [2013] NZHC 830.[5] Dissatisfied with both judgments, the appellants on 4 April 2013 filed:(a) an application under r 29A of the Rules for an extension of time to file an appeal against the first judgment (CA200/2013); and(b) an appeal within time against the second judgment (CA274/2013).[6] Noble opposed the appellants' application for an extension of time to appeal against the first judgment. It was set down for hearing in this Court on 16 September 2013.[7] In the meantime the appellants also applied under r 43(2)(a) of the Rules for an extension of time to apply for a hearing date and to file a case on appeal in respect of their appeal against the second judgment. They did so to enable their r 29A application in respect of the first judgment to be determined first.[8] The appellants' r 43(2)(a) application, which was opposed by Noble, was granted by this Court in a judgment delivered on 19 August 2013. 4 Time was extended to 4 October 2013.[9] The hearing of the appellants' r 29A application in respect of the first judgment did not proceed on 16 September 2013. Instead at the joint request of the parties, who were pursuing settlement negotiations, it was adjourned to 26 November 2013. In their joint memorandum seeking this adjournment, counsel referred to CA274/2013 and the possible need to seek a further extension of the 4 October 2013 deadline for the filing of the case on appeal.[10] In the event the appellants filed an application under r 43(2)(a) for a further extension of time to apply for the allocation of a hearing date and to file its case on appeal on 25 September 2013. The appellants sought an extension from 4 October 2013 until 20 working days after the Court issued its decision in respect of the r 29A application for an extension of time to bring the appeal against the first judgment.4 Philpott v Noble Investments Ltd [2013] NZCA 379.The r 43(2)(a) application, which was opposed by Noble, was set down for hearing on 26 November 2013 with the r 29A application.[11] Neither application proceeded on 26 November 2013 because Noble's lawyers sought and were granted leave to withdraw as they were unable to continue to represent Noble. The applications were adjourned for a new hearing date to be allocated this year.[12] At the hearing before us, Mr McMenamin, new counsel for Noble, advised that the r 43(2)(a) application in CA274/2013 was no longer opposed. An order granting an extension of time to apply for the allocation of a hearing date and to file the case on appeal for the appeal against the second judgment may therefore be granted. We do so on the terms set out later in this judgment.[13] Once it is accepted that the appeal against the second judgment will now proceed, we are satisfied, taking into account the relevant considerations, 5 and for the following reasons that, notwithstanding the long delay in respect of the appeal against the first judgment, the r 29A application for leave to appeal in respect of that judgment should also be granted.[14] First, it is clear from the two judgments and the orders made in both that they are closely interrelated, with the orders made in the second judgment dependent on the orders made in the first one. Associate Judge Osborne described the second judgment as "supplementary" to the first.6 As already noted, 7 the second hearing followed a reservation of leave in respect of the matters that were the subject of the subsequent orders made in the second judgment. The latter judgment added to and amended the orders in the first judgment and dismissed applications by the appellants for other amendments of those orders. An appeal against the second judgment is therefore inevitably going to involve an appeal against aspects of the first judgment, including the orders made.5 See My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 (CA) at [19]; Barber v Cottle [2010] NZCA 31 at [6]; and Robertson v Gilbert[2010] NZCA 429.6 Second judgment, above n 1, at [21].7 Above at [2]–[3].[15] Second, an examination of the terms of the orders made in the first judgment, especially the nature and scope of the matters covered by the reservation of leave to the parties to apply, supports the appellants' position that it was far from clear that an appeal against the first judgment was required at that stage or needed to be brought before those matters had, if necessary, been considered further by the Associate Judge.[16] Third, it would not assist this Court to discover on the hearing of the appeal against the second judgment that there were grounds for allowing the appeal that involved the first judgment. This Court should be able to consider both judgments together in the course of one appeal hearing.[17] Fourth, none of the suggestions of prejudice raised in the written and oral submissions for Noble warrant a different outcome. It is true that a successful appeal against the first judgment may result in repercussions for the second judgment, but that only serves to reinforce the close nature of the interrelationship between the two judgments. Issues of finance and costs will inevitably arise with the appeal against the second judgment able to proceed in any event. The question of costs will also be able to be addressed after the two appeals are heard.[18] Finally, it is not appropriate for us to express any view on the merits of the appeal against the first judgment when there is going to be an appeal against the second judgment in any event at which those merits will inevitably be addressed.[19] For these reasons, the two applications for are granted and we make the following consequential orders:(a) The two appeals are consolidated.(b) The appellants are to file and serve the case on appeal, attend to any other outstanding matters, including security for costs, and seek a fixture for the hearing of the consolidated appeals within 20 working days of the date of this judgment.(c) Any cross-appeal by the respondent is to be filed and served within 20 working days of the date of this judgment.(d) All questions of costs, in respect of both applications, are reserved pending the outcome of the appeals.Solicitors:Buddle Findlay, Christchurch for AppellantsK J McMenamin & Sons, Christchurch for Respondent