TAYLOR v BRAVO [2021] NZCA 162

TAYLOR v BRAVO [2021] NZCA 162 [4 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA689/2020[2021] NZCA 162BETWEEN WARREN WILLIAM DENNIS TAYLORApplicantAND PAUL HARRIS VICTOR BRAVORespondentCourt: Clifford and Courtney JJCounsel: Applicant in PersonP L Rice for RespondentJudgment:(On the papers)4 May 2021 at 3.30 pmJUDGMENT OF THE COURTThe application to extend time to bring the appeal is granted.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In a decision dated 1 October 2020, Downs J struck out Mr Taylor's claimagainst Mr Bravo on the ground that it was time-barred.1 On 23 November 2020Mr Taylor filed a notice of appeal against the judgment, 23 days out of time.The Registry rejected it. Mr Taylor has applied under r 29A of the Court of Appeal1 Taylor v Bravo [2020] NZHC 2565 [High Court decision].(Civil) Rules 2005 for an extension of time to appeal. Mr Bravo opposes theapplication.[2] The ultimate question on an application to extend time for appealing is whatthe interests of justice require.2 Relevant factors are likely to include the length of andreasons for the delay, the conduct of the parties, particularly the applicant, anyprejudice to other parties and the significance of any issues raised by the appeal.Although the merits of a proposed appeal may be relevant where it is obvious that theproposed appeal is completely hopeless, refusing an application to extend time shouldnot be used summarily to dismiss weak appeals.3The applicationThe length of and reasons for the delay[3] As noted, the length of the delay here is 23 days. Although not minimal, it isnot lengthy either. Mr Taylor explains that he was awaiting the transcript of thehearing before finalising the notice of appeal and that the Court misplaced his requestfor the transcript. Mr Bravo does not accept that this is a legitimate explanation,asserting that Mr Taylor did not need the transcript in order to bring an appeal.[4] In assessing Mr Taylor's explanation, we take into account the fact that he isunrepresented, 80 years old and in difficult personal circumstances. A person withrepresentation or with a better understanding of procedural requirements could beexpected to have filed the notice of appeal notwithstanding the lack of a transcript.However, in the circumstances of this case, we do not consider the delay to be seriousor unjustified.Prior conduct of the applicant[5] Mr Bravo also opposes the application on the ground that Mr Taylor has ahistory of bringing hopeless cases, pointing to a previous case in which Mr Taylor hadbeen refused an injunction in respect of a mortgagee sale. The mortgagee sale2 Almond v Read [2017] NZSC 80, [2017] NZLR 801 at [38].3 At [39(c)].involved the same property as is the subject matter of the present proceeding.The mortgagee was a trust associated with Mr Bravo. We accept that Gilbert J, whorefused the injunction, considered that no arguable claim had been established.4 Butthe nature of the present claim is quite different and we think that it overstates thematter considerably to describe Mr Taylor as having a history of bringing hopelessclaims.Prejudice to the respondent[6] We accept that the matter related to events that occurred some years ago andthat Mr Bravo would undoubtedly prefer to have the matter resolved as quickly aspossible. However, it has not been suggested that there is any actual prejudice toMr Bravo, given the relatively short delay.Merits of proposed appeal[7] Finally, Mr Bravo contends that the proposed appeal has no merit, relying onDowns J's conclusion that the claim was time-barred. In our view the position is notquite so clear. In the context of an application under s 229A it is not for us to considerthe merits of the case in any depth, but we are not satisfied that the proposed appealcan be dismissed as entirely hopeless.[8] As Downs J explained, the basis for Mr Taylor's claim was difficult to discernfrom his statement of claim.5 The statement of claim did not explicitly identify thelegal basis. Rather, it gave the following narrative regarding a partnership betweenMr Taylor and Mr Bravo which involved the subdivision and development of land inWaihi. Mr Taylor maintained that the basis of the partnership agreement was thatMr Bravo would supply the funding and he (Mr Taylor) would attend to the actualdevelopment and construction. The land was purchased in 2005 by Mr Bravo's trust,the Ingleside Trust, and subdivided. Ingleside held three titles and the previous ownerone. Contrary to their agreement, Mr Bravo insisted on selling the Ingleside sectionsrather than completing the intended development. Mr Taylor bought the Inglesidetitles through his own trust, the Moresby Trust, for $500,000. He funded the purchase4 Taylor v Ingleside Trust HC Auckland CIV-2017-404-961, 6 June 2017 (Minute of Gilbert J).5 High Court decision, above n 1, at [7].partly with bank borrowing ($284,945), partly with vendor finance from Ingleside($147,356) and partly with a credit to his construction business ($67,654). Mr Taylordefaulted on both loans. He was bankrupted on the bank's application in 2013 and theland was sold by mortgagee sale in 2017.[9] Mr Taylor complained that if his contribution to the partnership had been madeat the time of the mortgage his bankruptcy could have been avoided. He claimed thatit was not until he received the notice of his default under the Ingleside mortgage inlate 2016 that he realised Mr Bravo had deceived him. The statement of claim referredto "incorrect accounting" by Mr Bravo and Mr Bravo's failure to honour thepartnership agreement.[10] Mr Taylor was assisted in the formulation and argument of his claim by anaccountant, Mr Groves. The Judge relied in part on Mr Groves' submission whendescribing the basis for the claim. The Judge perceived the claim to be one for breachof a partnership agreement and a failure to account for profits.6 He treated theidentifiable breaches as having occurred in 2007 and relating to (1) a failure byMr Bravo to reimburse Mr Taylor for $65,000 expended by Mr Taylor in relation tothe property development, (2) Mr Bravo breaching the partnership agreement byforcing the sale of the lots held by Ingleside and (3) Mr Bravo requiring Mr Taylor togive a mortgage to secure vendor finance to support Mr Taylor's purchase of theproperties.7 The statement of claim was filed in June 2020. The Judge held that,subject only to the fraud exception in s 28 of the Limitation Act 1950, the claim wouldbe barred.8 He went on to find that, even if fraud had been alleged (which Mr Grovesdisavowed during argument) it would have been either discovered or discoverable in2007.9[11] We have sympathy with the Judge in attempting to discern the relevant legalbasis for the claim, given the lack of legal expertise in the formulation of the statementof claim. If the Judge is correct regarding the nature of the claim, then there wouldseem to be little merit in the proposed appeal. However, it seems possible that the6 High Court decision, above n 1, at [7].7 At [8]–[10].8 At [15]–[19].9 At [20] and [22].narrative in the statement of claim is properly seen as an assertion that the propertywas held by Ingleside (implicitly under Mr Bravo's control) on trust for the partnershipof Mr Bravo and Mr Taylor. If so, when the property was sold in 2007 for $500,000,each was entitled to half the value but Mr Taylor's payment for the whole of the valueresulted in Mr Bravo (as trustee of Ingleside or personally) receiving $250,000 towhich he was not entitled. The correct legal response, arguably, was a claim againstMr Bravo (either as trustee of the Ingleside Trust or as a knowing recipient in his ownright) to restore those trust monies. If the claim is viewed in that way, different issues,including regarding limitation, would arise.[12] These comments are not intended to suggest anything more than the possibilitythat the true nature of Mr Taylor's claim was not fully appreciated. It is not for us toexpress any view as to the likely outcome of an appeal. It is sufficient that we do notsee the merits of the appeal as so hopeless as to justify refusing leave to bring theappeal.Result[13] The application to extend time to bring the appeal is granted.Solicitors:Sanderson Weir, Auckland for Respondent