SIM V MONCRIEFF PASTORAL LTD CA CA706/2010

SIM V MONCRIEFF PASTORAL LTD CA CA706/2010 18 February 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA706/2010[2011] NZCA 21BETWEEN SHIRLEEN SHIA LING SIMApplicantAND MONCRIEFF PASTORAL LTDRespondentHearing: 15 February 2011Court: Glazebrock, Arnold and Harrison JJCounsel: Applicant in personP J Reardon for RespondentJudgment: 18 February 2011 09:30:00JUDGMENT OF THE COURTA. The application for an order granting an extension of time to appeal is dismissed.B. The order staying execution of the damages judgment is quashed.C. The appellant is to pay the respondent's costs for a standard appeal on a Band A basis with usual disbursements.REASONS OF THE COURT(Given by Harrison J)Introduction[1] In August 2007 the High Court delivered a judgment in favour of the respondent, Moncrieff Pastoral Ltd (Moncrieff), and adverse to the applicant, Ms Shirleen Sim. She filed an appeal in this Court in time but failed to take all the necessary steps to pursue the appeal. In August 2008 the Registry sent a notice ofabandonment to her solicitor. In October 2010 Ms Sim applied to this Court for an order granting an extension of time to appeal.[2] This brief outline of the relevant chronology is not promising for Ms Sim, who must satisfy a high threshold if her application is to succeed.Background[3] The relevant background facts can be stated shortly.[4] In March 2003 Ms Sim entered into an agreement to purchase a rural property near Christchurch from Moncrieff. Ms Sim was acting throughout as the front person for a Mr Lau, her husband. The purchase price was $2,900,000. Ms Sim or, more particularly, Mr Lau intended to use the property for dairying purposes. The agreement contained a critical clause which guaranteed the purchaser access to water in specific terms.[5] Settlement was due for September 2004. In the event Ms Sim failed to settle. Moncrieff cancelled the agreement and sought summary judgment which was denied in the High Court.1[6] Moncrieff appealed unsuccessfully to this Court. However, the Court largely concurred with Moncrieff's construction of the critical contractual provision guaranteeing Ms Sim access to water.2 Moncrieff's case then went to trial, essentially on two discrete issues. Keane J upheld the validity of Moncrieff's noticeof cancellation of the agreement and dismissed Ms Sim's counterclaim for an orderdirecting the return of her deposit.3 Ms Sim was also ordered to pay costs of $40,000 together with disbursements.[7] Ms Sim was represented in the High Court and Court of Appeal by an Auckland solicitor, Mr D Singh. He continued to represent her on the appeal againstKeane J's decision, which was filed within time on 21 September 2007. He failed,1 Moncrieff Pastoral Ltd v Sim HC Christchurch CIV-2004-404-5603, 28 April 2005.2 Moncrieff Pastoral Ltd v Sim CA79/05, 28 September 2006.3 Moncrieff Pastoral Ltd v Sim HC Auckland CIV-2004-404-5603, 31 August 2007.however, without explanation, to file a case on appeal within the prescribed period of six months.4[8] On 23 July 2008 the Registry gave Mr Singh notice that Ms Sim's appeal was deemed to be abandoned. On 29 August 2008 it issued a formal notice of abandonment. Mr Singh responded by letter dated 13 October 2008. He remonstrated with the Registry but took no steps to challenge the notice of abandonment or to apply for an extension of time.[9] Two steps were subsequently taken in the High Court. First, Moncrieff applied for judgment for damages against Ms Sim for the loss suffered on its resale of the property. Ms Sim appeared for herself. Keane J awarded Moncrieff damages of $230,000 together with interest of $380,948 and costs.5[10] Second, Keane J granted an application by Ms Sim for an order staying execution of his damages judgment. He acted on the ground that Ms Sim had filed an application for special leave to appeal his original decision. In the course of his judgment Keane J expressed sympathy for Ms Sim, describing her as Mr Lau's "instrument".6 The Judge did not specify the duration of the stay. But we infer from the terms of his judgment that it was to lapse if Ms Sim's application for specialleave was dismissed.[11] We add that Mr Singh sought and was granted leave by the High Court on 11 August 2010 to withdraw from representing Ms Sim.Legal principles[12] A party is entitled to recommence an appeal deemed abandoned by filing a new appeal. However, an extension of time is required.7 The application for extension is treated as if it were an application for leave to appeal. Leave will only4 Rule 43 of the Court of Appeal (Civil) Rules 2005.5 Moncrieff Pastoral Ltd v Sim HC Auckland CIV-2004-404-5603, 1 October 2010.6 Moncrieff Pastoral Ltd v Sim HC Auckland CIV-2004-404-5603, 3 December 2010 at [11].7 Rule 29A of the Court of Appeal (Civil) Rules 2005.be given in exceptional cases; it will be rare in deemed abandonment cases for the Court to exercise its discretion favourably.8[13] The essential question is whether an extension of time to Ms Sim will meet the overall interest of justice. In this respect the Court will consider factors such as the length of the delay and the reason for it; the extent of any prejudice flowing from the grounds of an extension; the merits of the appeal; and whether the appeal raises any issue of public importance.9Analysis[14] Ms Sim offers three reasons for her delay in pursuing the appeal. In summary, they are that this Court effectively misrepresented what was required to initiate the appeal; that she was absent from New Zealand for the relevant two year period; and that she was depressed and experiencing difficulty in ordering her affairs as a result.[15] Ms Sim has failed to establish any of these grounds. She was represented by counsel throughout almost all of the relevant period (except between August and October 2010). The onus for ensuring compliance with r 43 lay with her or her counsel, not with the Registry of this Court. As Mr Reardon points out, Mr Singh was expressly on notice from July 2008 that the Registry had issued a notice of deemed abandonment. He took no formal steps to reinstate the appeal or apply for an extension.[16] Ms Sim has not attempted to explain the reasons for Mr Singh's omission toact. It is no excuse that she was absent from New Zealand for part or all of this period. She was represented by counsel and she says nothing about Mr Lau'swhereabouts. The record simply establishes that she did nothing. And there is no reliable evidence of her allegedly depressed medical condition.8 Sexton v Rice Craig [2007] NZCA 200 at [31], applied in Siemer v Stiassny [2009] NZCA 624 at [25].9 Barber v Cottle, [2010] NZCA 31 at [5] and [6].[17] In our judgment the length of Ms Sim's delay and her failure to provide anyevidence in support is decisive against her application for leave.[18] We add that Ms Sim's proposed appeal is without merit. The groundsadvanced are confused and confusing. She appears to be raising arguments about the construction of the water guarantee provision which are unsustainable in the face ofthis Court's earlier decision.10[19] Finally, we take account of the prejudice to Moncrieff. This litigation has run for many years. As Mr Reardon submits, in reliance on Ms Sim's abandonment of her appeal against Keane J's liability judgment, Moncrieff incurred the further cost of applying to the High Court and appearing at trial of its claim for damages. Both Moncrieff and the community have a legitimate interest in the timely determination of proceedings. It is now too late for Ms Sim to reopen this case.[20] In summary, we are satisfied that Ms Sim's application falls well short of satisfying the relevant legal test and that an order granting her an extension of time to appeal would not meet the overall interests of justice.Conclusion[21] Ms Sim's application for an order granting an extension of time to appeal is dismissed. For the avoidance of doubt we quash the order for stay of execution made by Keane J on 3 December 2010.[22] Ms Sim is to pay Moncrieff costs for a standard application on a Band A basis together with usual disbursements.Solicitors:Cooper Rapley, Palmerston North for respondent10 Moncrieff Pastoral Ltd v Sim CA79/05, 28 September 2006.