YARROW v WESTPAC NEW ZEALAND LIMITED [2018] NZCA 601

YARROW v WESTPAC NEW ZEALAND LIMITED [2018] NZCA 601 [18 December 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA594/2017[2018] NZCA 601BETWEEN PAUL STEVEN YARROWAppellantAND WESTPAC NEW ZEALAND LIMITEDRespondentHearing: 17 September 2018Court: Kós P, Miller and Williams JJCounsel: M A Corlett QC for AppellantR B Stewart QC and S L Hawksworth for RespondentJudgment: 18 December 2018 at 4.00 pmJUDGMENT OF THE COURTA The application for an extension of time to apply for the allocation of ahearing date is granted.B The appellant is to file that application by 25 January 2019, whereuponthe Registrar is to set the hearing down for hearing at the first availableopportunity.C There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Mr Yarrow was adjudicated bankrupt at the suit of the respondent,Westpac New Zealand Ltd, on 19 September 2017.1 He had an appeal as of rightagainst that decision. That appeal was duly filed on 17 October 2017. Rule 43 ofthe Court of Appeal (Civil) Rules 2005 (the Rules) required application for a hearingdate to be made within three months of the appeal being brought. Owing to an errorby counsel (not Mr Corlett QC) that step was not taken. As a result the appeal wasdeemed abandoned.2 This, then, is an application under r 43(2) for extension of timeto apply for a hearing date.[2] The following is clear. First, that the error was made by counsel unfamiliarwith appellate practice and rules. Unaware of r 43(1), counsel deferred seekinga fixture in order to pursue the possibility of obtaining new evidence on appeal.Secondly, the appeal itself, and the case on appeal, having been filed in time, and nostay having been sought, the respondent cannot point to any material prejudice.[3] What is less clear is whether the proposed appeal itself has any merit.The essence of the appeal is said to be that the Westpac New Zealand Ltd misledthe High Court by asserting that it and Westpac Banking Corp are separate entities,and failing to disclose that one of its two key witnesses was also a senior employee ofthe latter. The former point is answered by the fact that the companies are separateentities, their legal relationship being governed by the Westpac New Zealand Act2006. The factual association between the New Zealand and Australian arms ofWestpac is a matter of common knowledge, and it is not suggested Mr Yarrow orthe Court was ignorant of that. The underlying allegation is that Westpac BankingCorp (and therefore also Westpac New Zealand Ltd, according to Mr Yarrow) wasaware of breach of fiduciary duty by other directors of the failed Yarrow group ofcompanies in entering a lease in Australia, and that they had a duty to disclose that to1 Westpac New Zealand Ltd v Yarrow [2017] NZHC 2261.2 Court of Appeal (Civil) Rules 2005, r 43(1)Mr Yarrow before taking a personal guarantee from him. That argument wascomprehensively rejected by Associate Judge Doogue.3[4] Our clear impression is that the appeal is weak. But it is not wholly unarguable.And but for counsel's error, it would in due course have been argued. The decision ofthe Supreme Court in Almond v Read establishes that any consideration of the meritsof an appeal must be superficial pre-hearing, absent exceptional delay or similardisentitling circumstance, and that appeals as of right ought ordinarily be heard bythis Court.4 Almond v Read concerned r 29A, not r 43, but the principles it outlinesapply to any interlocutory application for an extension of time where there is an appealas of right.5[5] The delay here is not exceptional, and is attributable to counsel error.Other steps in the appeal had been duly complied with. The apparent slender meritsof the appeal are therefore irrelevant to the merits of the application.Result[6] The application for an extension of time to apply for the allocation of a hearingdate is granted.[7] The appellant is to file that application by 25 January 2019, whereupon theRegistrar is to set the hearing down for hearing at the first available opportunity.[8] In the circumstances, there is no order for costs.Solicitors:Simpson Dowson Meggitt, Auckland for ApplicantSimpson Grierson, Auckland, for Respondent3 Westpac New Zealand Ltd v Yarrow, above n 1, at [125]–[128].4 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39].5 Kipping v Sharrock [2018] NZCA 289 at [12].