SIMON GERARD FORD AND LYNETTE DALE FORD V ANDREW JAMES RYAN AND LEISA JANE RYAN CA CA38/2008
Special leave to appeal out of time was granted because the notice of appeal had been filed within the prescribed period and the only failure was late service caused by solicitor oversight; respondents consented and no prejudice was identified, so the Court exercised its discretion under r29(4) to grant leave.
Source-derived case information.
- Citation
- openlaw-3601ad48_708d_458c_83a8_bca3a1d99b8d.pdf
- Parties
- Applicant: Simon Gerard Ford; Applicant: Lynette Dale Ford; Respondent: Andrew James Ryan; Respondent: Leisa Jane Ryan
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 14 March 2008
- Procedural Posture
- Application for Special Leave to Appeal Out of Time / Application Dealt With on the Papers
- Outcome
- Special leave to appeal out of time granted.
- Legal Topics
- Special Leave to Appeal, Service of Notice, Time Limits for Appeals, Court of Appeal Rules
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Gerard Ford
Applicant
Lynette Dale Ford
Applicant
Andrew James Ryan
Respondent
Leisa Jane Ryan
Respondent
Procedural Posture
Application for Special Leave to Appeal Out of Time / Application Dealt With on the Papers
Legal Issues
- 1 Whether special leave to appeal out of time should be granted
- 2 Whether failure to serve the notice of appeal within time because of solicitor oversight warranted refusal of leave
- 3 Application and interpretation of Court of Appeal (Civil) Rules 2005 r29(4) and r31(1)
Ratio Decidendi
Special leave to appeal out of time was granted because the notice of appeal had been filed within the prescribed period and the only failure was late service caused by solicitor oversight; respondents consented and no prejudice was identified, so the Court exercised its discretion under r29(4) to grant leave.
Court Disposition
Special leave to appeal out of time granted.
Orders
- Special leave to appeal out of time is granted.
- Application to be dealt with on the papers pursuant to r26(4)(b)(ii)
Full Case Text
Judgment text and source record
1 paragraphs
SIMON GERARD FORD AND LYNETTE DALE FORD V ANDREW JAMES RYAN AND LEISA JANE RYAN CA CA38/2008 14 March 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA38/2008 [2008] NZCA 57BETWEEN SIMON GERARD FORD AND LYNETTE DALE FORD Applicants AND ANDREW JAMES RYAN AND LEISA JANE RYAN Respondents Court: O'Regan, Robertson and Arnold JJ Counsel: A S McIntyre for Applicants B A Gibson for A J Ryan C A Matsis for L J Ryan Judgment: 14 March 2008 at 10 am (on the papers)JUDGMENT OF THE COURT Special leave to appeal out of time is granted. REASONS OF THE COURT(Given by Arnold J) [1] This is an application for special leave to appeal out of time against a judgment of MacKenzie J given on 13 December 2007: HC WN CIV 2005-485-845. The application is made under r 29(4) of the Court of Appeal (Civil) Rules 2005.[2] Counsel for the respondents have filed memoranda indicating that they consent to the granting of special leave. In light of that, Arnold J directed that the application be dealt with on the papers, pursuant to r 26(4)(b)(ii). [3] MacKenzie J delivered his judgment on 13 December 2007. The applicants filed their notice of appeal on 30 January 2008, within the 20 working day period provided for in the Rules. The respondents were advised of this. Unfortunately, as a result of an oversight on the part of the applicants' lawyers, the notice of appeal was not served on the respondents until 12 February 2008. Accordingly the appeal was not "brought" within the required time period (r 31(1)). [4] In these circumstances we consider that special leave to appeal should be granted.Solicitors: B Ranford, Waikanae for Applicants B A Gibson, Wellington for A J Ryan Gault Mitchell Lawyers, Wellington for L J Ryan