BURKE AND ANOR V WESTERN BAY OF PLENTY DISTRICT COUNCIL CA CA31/05

BURKE AND ANOR V WESTERN BAY OF PLENTY DISTRICT COUNCIL CA CA31/05 27 April 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA31/05BETWEEN PAUL JULIAN BURKE AND GILLIAN ELIZABETH BURKE Applicants AND WESTERN BAY OF PLENTY DISTRICT COUNCIL Respondent Court: Anderson P, McGrath and O'Regan JJ Counsel: Applicants in person P J Crombie for Respondent Judgment: 27 April 2005 (On the papers)JUDGMENT OF THE COURT The application for special leave is dismissed. We award costs of $1,500 to the Council together with disbursements (including travelling and accommodation costs of counsel, if any) to be fixed by the Registrar. REASONS(Given by O'Regan J)Introduction[1] This is an application for special leave extending the time prescribed for the filing of an appeal against a judgment of the High Court, Western Bay of Plenty District Council v Burke and Burke HC TAU CIV-2003-470-356 18 September 2004 Frater J. The application is made under r 6(3) of the Court of Appeal (Civil) Rules 1997. By consent, the application was dealt with on the papers. [2] The High Court proceedings involved a claim by the respondent (the Council) for unpaid rates and a counterclaim by the applicants (Mr and Mrs Burke) for payment by the Council of a significant sum which Mr and Mrs Burke said was payable as consideration for Mr and Mrs Burke allowing the creation of an esplanade strip over part of their property. Mr and Mrs Burke said that such an agreement had been reached with a representative of the Council, Mr Humphreys, in September 1993. [3] Frater J considered the evidence relating to the alleged agreement, and found as a matter of fact that the Council had not entered into an agreement with Mr and Mrs Burke as they alleged. She said that all the appearances were against the existence of the alleged agreement. She found that Mr Burke had probably sought or demanded compensation in the terms which he said had been agreed, but she rejected his claim that Mr Humphreys had either agreed to those terms or held himself out as having the power to bind the Council to those terms. [4] One of the arguments made by Mr and Mrs Burke in support of their contention that an agreement had been entered into with the Council was that the Council did not have power to impose an esplanade strip over the property in question, because it was a balance lot remaining after the separation of two subdivided lots from the original, larger, lot, and there was no power to impose esplanade strips on balance lots under the Resource Management Act 1991 at that time. This contention was disputed by the Council, and it called a cadastral surveyor to give expert evidence on the point. That evidence was to the effect that the property in question was not a balance lot, so the Council was entitled to require thatan esplanade strip or an esplanade reserve be created subject to the payment of compensation for any lot over four hectares in size. [5] Frater J also rejected an argument that the Council was estopped from resiling from the alleged agreement, essentially for the reason that no such agreement existed. A third claim by Mr and Mrs Burke, based on breach of fiduciary duty, was not pursued at the hearing. [6] The Judge upheld the Council's claim for unpaid rates. She rejected the defences put forward by Mr and Mrs Burke, apart from making an adjustment for the fact that the Council had made inadequate allowance for the fact that a Queen Elizabeth Π open space covenant applied to all of the property in question, not just to a protected area of native forest. [7] Frater J therefore entered judgment for the Council in the sum of $22,296.10 for unpaid rates, plus interest at 7.5% from 10 August 2000 until the date of payment and dismissed the counterclaim of Mr and Mrs Burke. She awarded costs to the Council on a scale 2B basis. She reserved leave to the parties to file memoranda on costs if agreement could not be reached on the amount of costs to be paid. [8] The solicitors for the Council wrote to Mr and Mrs Burke seeking their agreement to the costs as calculated by them, but no agreement was forthcoming. They then filed a memorandum with the Court quantifying the costs on a 2B basis at $62,422.50 plus disbursements of $8,756.16. On 22 November 2004, the Registrar wrote to the parties notifying them that Frater J had made a minute ordering Mr and Mrs Burke to pay the costs, disbursements and interest claimed by the Council. [9] Following receipt of that minute the solicitors for the Council wrote to the High Court enclosing a judgment for sealing. The following day they wrote to Mr and Mrs Burke demanding payment of the sum of $100,640.05, made up of the judgment on the rates claim of $22,296.10, interest on that judgment sum of $7,165.29, costs of $62,422.50 and disbursements of $8,756.16.[10] The solicitors for the Council received the sealed judgment from the High Court in January 2005, during the holiday period. On 1 February 2005 they served a copy of the sealed judgment on Mr and Mrs Burke, and made a further demand for payment of the judgment debt. [11] Rule 6(3) confers a wide discretion on the Court to extend the time for the filing of an appeal, but the power to extend time will not be used lightly. The ultimate test is whether the granting of leave would meet the overall interest of justice: State Insurance Limited v Brooker (2001) 15 PRNZ 493 at [9]. In the present case, the appeal period expired on 18 October 2004 and the application for special leave was made on 2 March 2005. Accordingly, the application was made about four and half months after the expiry of the appeal period. [12] In support of the application for special leave, Mr and Mrs Burke filed an affidavit sworn by Mr Burke. In that affidavit he sets out the circumstances as to why the time limit for appealing was not complied with. [13] Mr Burke says that Mr and Mrs Burke understood that a judgment would need to be sealed before it could be appealed to the Court of Appeal but, as is noted in the affidavit, r 542(4) of the High Court Rules says that a party may bring an appeal under r 7 of the Court of Appeal (Civil) Rules 1997 even though the judgment appealed against has not been sealed, as long as the party takes steps to ensure that the judgment is sealed promptly after the appeal is brought. Rule 542(4) overrules r 542(2) which says that no step may be taken on a judgment before it has been sealed, unless the Judge directs otherwise. Rule 6(2) of the Court of Appeal (Civil) Rules requires, in cases such as the present, that the appeal be brought in 20 working days after the decision appealed against is given. Rule 6A says the time period prescribed in r 6(2) begins when the decision is given, whether or not formal steps such as entering or sealing the decision are necessary or are taken after the decision is given. The legal position is clearly expressed in these Rules. [14] The High Court decision was given on 18 September 2004, and the appeal period commenced on that date. Mr Burke wrote to the Registrar of the High Court on 24 November 2004, after he had received notification that the solicitors for theCouncil had submitted a judgment for sealing, notifying the Court that he intended to file an appeal, alleging bias on the part of the Judge and fraud. He said that the delay in filing the appeal was in consequence of the "punitive behaviour by the plaintiff [Council]". There is no explanation as to why the application for special leave was delayed for a further three and a half months. [15] Mr Burke also deposes that there is now new evidence which he says counters the finding by Frater J that the esplanade strip over the property in question was a requirement imposed under s 405A of the Resource Management Act 1991 consequent upon the subdivision of Mr and Mrs Burke's property. As indicated earlier, the evidence before Frater J was that the property in question was not a balance lot, and an easement strip could therefore be required under s 405A. [16] Mr and Mrs Burke would need to obtain special leave of this Court to adduce new evidence under r 24(3) of the Court of Appeal (Civil) Rules. However the list of items which comprise this new documentary evidence discloses that all of it was in existence at the time of the High Court hearing. It cannot be said to be fresh evidence. So there would therefore be real difficulties for Mr and Mrs Burke in obtaining special leave in this case. As this Court said in Rae v International Insurance Brokers (Nelson Marlborough) Limited [1998] 3 NZLR 190 at 193:While the absence of freshness is not an absolute disqualification, the criteria for admission [of new evidence] in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling. In addition, it will need to pass the tests of credibility and cogency".[17] The other matters raised in the affidavit sworn by Mr Burke do not bear on the issue of whether leave should be granted. Accordingly, we must determine whether leave should be granted on the basis that there has been a delay of four and a half months after the expiry of the appeal period, and three and a half months after Mr and Mrs Burke notified the Registrar of the High Court that they were intending to appeal. [18] The Council opposes the granting of leave. Its counsel, Mr Crombie, argued that granting the application would cause prejudice to the Council which hadincurred significant costs in defending the claims made by Mr and Mrs Burke in the High Court and in prosecuting its claim for unpaid rates. He said the Council was entitled to enforce the High Court judgment to recover outstanding rates and the costs ordered to be paid. [19] Mr Crombie said that the expert evidence from the cadastral surveyor called by the Council in the High Court was clear, and unchallenged. The surveyor said that the property in question was not a balance lot. He said it would not be appropriate to allow Mr and Mrs Burke to adduce evidence on an appeal which was available to them before the High Court hearing, as a means of curing their failure to call any expert evidence in the High Court. He said that even the proposed new evidence referred to in the affidavit of Mr Burke does not include evidence from an expert which challenges the evidence given by the cadastral surveyor in the High Court. [20] We are not satisfied that the granting of leave would meet the overall interest of justice in this case. Mr and Mrs Burke have given no adequate explanation for their failure to file their appeal in time. The affidavit from Mr Burke indicates that the conduct of the appeal would involve an attempt to challenge the factual findings made by the High Court Judge on the basis of evidence which could have been called in the High Court. The High Court Judge made a clear finding of fact that no agreement existed between Mr and Mrs Burke and the Council, and that finding appears to be amply supported by the evidence. In those circumstances the merits of the proposed appeal must be assessed as low. [21] We do not think that the prejudice to the Council from the delay can be said to be significant. But in view of the significant delay (four and a half months), the apparent lack of merit of the proposed appeal and the minimal and inadequate explanation for the delay, we are satisfied that it is not in the interest of justice to grant special leave in this case. Special leave is therefore declined.[22] We award costs to the Council of $1,500 plus disbursements (including travelling and accommodation costs of counsel, if any) to be fixed by the Registrar.Solicitors: Cooney Lees Morgan, Tauranga for Respondent