SMITH v PAROS PROPERTY TRUST LIMITED [2021] NZCA 675

SMITH v PAROS PROPERTY TRUST LIMITED [2021] NZCA 675 [13 December 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA562/2021[2021] NZCA 675BETWEEN TIMOTHY ERIC BRUCE SMITHAppellantAND PAROS PROPERTY TRUST LIMITEDRespondentCourt: Brown and Gilbert JJCounsel: Appellant in PersonL McEntegart and A J Steel for RespondentJudgment:(On the papers)13 December 2021 at 10.30 amJUDGMENT OF THE COURTAn extension of time is granted until 11 February 2022 for the filing of thecase on appeal.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] On 13 September 2021 Mr Smith filed a notice of appeal against a judgmentof Harland J dated 19 August 2021 in favour of the respondent.1 Although Mr Smithhas paid security for costs, he has yet to file the case on appeal. The three-monthperiod for doing so expires on 13 December 2021.1 Paros Property Trust Ltd v Smith [2021] NZHC 2163.[2] Mr Smith has filed an application for an extension of time to "March 2022" tofile the case on appeal. His application explains:2. Mr Smith who resides in Auckland received the judgement duringlevel 4 lockdown and does not have the resources in the form ofelectronic software, photocopiers and binding facilities availabledirectly to him to complete the requirements for the making of thecase on appeal.3. Such businesses that could assist Mr Smith to fulfil the requirementsto make the case on appeal for this appeal, have remained closed tothe public from the date of the delivery of the judgement on the19th of August 2021 not allowing Mr Smith a proper opportunity tofulfil the requirements for the making of the case on appeal.4. Further Mr Smith['s] has been denied access to funds to assist hisappeal. Mr Smith's ex-wife is denying access to funds andwithholding agreement for Mr Smith to access his share of maritalfunds, in order that Mr Smith's share of funds are held in trust toindemnify Ms Shaw in relation to the lease that is the subject of thisappeal. This has further [has] restricted the ability of Mr Smith tomake the case on appeal.[3] In a memorandum dated 6 December 2021 the respondent states thatMr Smith's assertions regarding his inability to progress preparation of the case onappeal are not accepted. Neither party has filed submissions in relation to theapplication.[4] As this Court explained in Yarrow v Westpac New Zealand Limited2 thedecision of the Supreme Court in Almond v Read3 establishes that any considerationof the merits of an appeal must be superficial pre-hearing, absent exceptional delay orsimilar disentitling circumstance, and that appeals as of right ought ordinarily be heardby this Court. Yarrow noted that, while Almond v Read concerned r 29A, not r 43, theprinciples it outlines apply to any interlocutory application for an extension of timewhere there is an appeal as of right.4[5] The delay here is not exceptional. Reasons have been advanced for the failureto lodge the case on appeal within the prescribed period. Furthermore, the requirementto pay security for costs has been duly complied with. In the circumstances we2 Yarrow v Westpac New Zealand Limited [2018] NZCA 601.3 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39].4 Kipping v Sharrock [2018] NZCA 289 at [12].consider that an extension of time is justified, albeit not of the duration sought byMr Smith.[6] We grant an extension of time to 11 February 2022 for the filing of the case onappeal. We see no reason why the case on appeal cannot be completed and filed withinthat period. We consider that there is little if any prejudice for the respondent ingranting an extension of that duration at this time. The alternative course would be toallocate the application to a Miscellaneous Motions hearing date. The first availabledate is 28 February 2022.Result[7] An extension of time is granted until 11 February 2022 for the filing of the caseon appeal.Solicitors:Brown Partners, Auckland for Respondent