SKIFFINGTON AS EXECUTOR FOR THE ESTATE OF LORRAINE JOYCE SKIFFINGTON v WELLINGTON TENTHS TRUST [2018] NZCA 462

SKIFFINGTON AS EXECUTOR FOR THE ESTATE OF LORRAINE JOYCE SKIFFINGTON vWELLINGTON TENTHS TRUST [2018] NZCA 462 [24 October 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA386/2018[2018] NZCA 462BETWEEN HAYDEN JAMES HARLEYSKIFFINGTON AS EXECUTOR FOR THEESTATE OF LORRAINE JOYCESKIFFINGTONFirst ApplicantSTRATEGIC DIRECTIONZ LIMITEDSecond ApplicantAND WELLINGTON TENTHS TRUSTRespondentCourt: Asher and Brown JJCounsel: D J S Parker and M W G Riordan for First ApplicantNo appearance for Second ApplicantC F J Reid and D C Calder for RespondentJudgment:(On the papers)24 October 2018 at 3.00 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal under r 29A of theCourt of Appeal (Civil) Rules 2005 is granted.B The respondent must pay the first applicant costs for a standard applicationon a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Mr Skiffington (the first applicant) seeks an extension of time under r 29A ofthe Court of Appeal (Civil) Rules 2005 (the Rules) to 16 July 20181 within which toappeal against the judgment of the High Court delivered on 31 May 2018.2The Wellington Tenths Trust (the respondent) opposes his application.The circumstances leading to the application[2] The respondent's summary judgment application against the lateMs Lorraine Skiffington was argued on 19 July 2017. At the time of the hearing itwas known that Ms Skiffington was seriously ill. She died on 2 September 2017.[3] The High Court judgment, delivered on 31 May 2018, held among other thingsthat the respondent was entitled to summary judgment on liability on its claim thatMs Skiffington had dishonestly assisted Dr Ralph Love to breach a fiduciaryobligation owed by him to the trustees of the respondent.3[4] However in order to allow for an application to be made to substitute theadministrator of Ms Skiffington's estate as the first defendant, Associate Judge Smithdeferred the date for formal entry of judgment, stating:[5] The law provides that Tenths' claim against Ms Skiffington maycontinue against the administrator of her estate after her death, but noapplication has yet been made to substitute the administrator ofMs Skiffington's estate as first defendant in the proceeding. As the matter wasfully argued before Ms Skiffington's death, I propose to give my decision onboth applications, but will refrain from entering judgment on the summaryjudgment application to allow either party to make an appropriate applicationto substitute the administrator of Ms Skiffington's estate as first defendant.Judgment can be entered in accordance with my decision on the summaryjudgment application as and when the administrator is substituted.(Footnotes omitted.)[5] On 18 June 2018 Churchman J made the following orders:41 The notice of appeal was filed on 16 July 2018.2 Wellington Tenths Trust v Skiffington [2018] NZHC 1261.3 At [151(1)].4 Wellington Tenths Trust v Skiffington HC Wellington CIV-2017-485-180, 18 June 2018 (Minuteof Churchman J) at [7].(a) substituting Hayden James Harley Skiffington of Hamilton, Student,in his capacity as administrator of the estate of Lorraine JoyceSkiffington (deceased) as first defendant in these proceedings; and(b) that the proceedings be carried on between the continuing parties andthe new party.[6] The sealed order for summary judgment was served on counsel for the firstapplicant on 26 June 2018.[7] While Mr Skiffington considered that the time for filing an appeal from thejudgment might not begin to run until 18 June 2018, the present application was filedon 10 July 2018 seeking an extension of time for the filing of an appeal.[8] Hence there are two issues for determination:(a) By what date was an appeal required to be filed against the judgment?(b) If an extension of time to file an appeal is required, should it be granted?The time for filing an appeal[9] Rule 29 of the Rules relevantly provides:29 Time for appeal(1) A party must bring an appeal,—(a) in the case of an appeal to the Court as of right, within 20working days after the date of the decision against which theparty wishes to appeal;(3) For the purposes of subclause (1), the date of the decision is the dateon which the decision is given,—(a) whether reasons for the decision are then given or are givenlater; or(b) whether or not formal steps, such as entering or sealing thedecision, are necessary or are taken after the decision is given.[10] This Court previously considered the rule in Ronayne v Coombes where Wild Jstated:5[2] The fact that Faire J did not formally enter judgment until24 June 2015 resulted in disagreement between counsel as to whether thisappeal was filed in time. We are clear that it was not. Pursuant to r 11.5 ofthe High Court Rules, the Judge gave his decision on 29 May 2015, and thatis the operative date in terms of r 29(3)(b) of the Court of Appeal (Civil) Rules2005. [11] However Mr Parker submits for the first applicant that the present case is anovel situation and that Ronayne is distinguishable because there:(a) the time for payment of a judgment sum was reserved for furthersubmissions;(b) there was no statement by the Court that entry of judgment would bedelayed until after a specified event occurred; and(c) the parties specifically requested a final determination from the Courton the substantive matters so that they could agree on the time forpayment.[12] He submits that the delay in entry of judgment contemplated byAssociate Judge Smith was necessitated by the death of Ms Skiffington and the factthat there had been no application to substitute the estate.[13] We accept that the purpose of Associate Judge Smith's direction at [5]6 appearsto have been to prevent the judgment having any effect against the first applicant untilhe was substituted as a party to the proceedings. However as r 29(3) explicitly states,the date of the decision is the date on which it is given, whether or not formal stepsare taken subsequently. It follows that the 20 working day period in r 29(1)(a) ranfrom 31 May 2018 and the last day for filing an appeal was 29 June 2018. Hence anapplication for an extension of time under r 29A was required.5 Ronayne v Coombes [2016] NZCA 393, [2016] NZFLR 672.6 Set out above at 4.Should an extension of time to appeal be granted?[14] The relevant principles were recently explained by the Supreme Court inAlmond v Read:7[37] Accordingly, where a litigant takes steps to exercise the right of appealwithin the required timeframe (including advising the other party), but missesthe specified time limit by a day or so as a result of an error or miscalculation(especially by a legal adviser) and applies for an extension of time promptlyon learning of the error, we do not think it is appropriate to characterise thegiving of an extension of time as the granting of an indulgence whichnecessarily entitles the court to look closely at the merits of the proposedappeal. In reality, there has simply been a minor slip-up in the exercise of aright. An application for an extension of time in such a case should generallybe dealt with on that basis, with the result that an extension of time shouldgenerally be granted, desirably without opposition from the respondent.[15] The Court stated that the ultimate question when considering the exercise ofthe discretion to extend time under r 29A is what the interests of justice require.8That necessitates an assessment of the particular circumstances of the case.Factors identified as likely to require consideration included:9(a) the length of the delay;(b) the reasons for the delay;(c) the conduct of the parties, particularly of the applicant;(d) any prejudice or hardship to the respondent or to others with alegitimate interest in the outcome; and(e) the significance of the issues raised by the proposed appeal, both to theparties and more generally.7 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.8 At [38].9 At [38].The Court reiterated that the merits will not generally be relevant in a case where therehas been an insignificant delay as a result of a legal adviser's error and the proposedrespondents have suffered no prejudice beyond the fact of an appeal.10[16] The delay in filing the application was six working days. The respondentcontends that delay was not minimal. However we consider it was a short delay andless than other periods of delay which have been excused in other applications, forexample Edel Metals Group Ltd v Geier Ltd.11[17] The respondent also submits that the delay is unexplained with no reasonsgiven why additional time was necessary. However the explanation advanced wasinadvertence on account of an error as to the correct date for filing an appeal asmanifest from the first issue traversed above.[18] The primary ground of opposition is that the intended appeal lacks merit.For the respondent it is argued that the intended appeal requires a construction ofs 47(1) of the Evidence Act 2006 which denies the section's applicability to thefindings made by Lang J in the trial of Dr Love. It is submitted that this presents alegally untenable argument and amounts to a collateral attack on the criminal trialfindings which may be an abuse of process.[19] The rejoinder for Mr Skiffington is that a party to a civil proceeding can onlybe bound by findings of fact in criminal proceedings to the extent that those findingsare implicit in the offences.12 The submission is made that Mr Skiffington has a strongcase that the Associate Judge relied on findings of fact from criminal proceedingsbeyond those that were implicit in the offences for which Dr Love was found guilty.With reference to the denial of dishonest assistance it is further submitted that thefindings of dishonesty against Ms Skiffington's advisers support rather thanundermine her evidence that she was misled by those persons.10 At [39(b)].11 Edel Metals Group Ltd v Geier Ltd [2017] NZCA 359.12 Citing Commissioner of Police v Filer [2013] NZHC 3111 at [25].[20] On the issue of the relevance of the merits of a proposed appeal theSupreme Court in Almond v Read said:13Accordingly, a decision to refuse an extension of time based substantially onthe lack of merit of a proposed appeal should be made only where the appealis clearly hopeless. An appeal would be hopeless, for example, where, on factsto which there is no challenge, it could not possibly succeed, where the courtlacks jurisdiction, where there is an abuse of process (such as a collateralattack on issues finally determined in other proceedings) or where the appealis frivolous or vexatious. The lack of merit must be readily apparent.The power to grant or refuse an extension of time should not be used as amechanism to dismiss apparently weak appeals summarily.[21] Consideration of the merits of an appeal in the context of an application toextend time must necessarily be relatively superficial.14 Furthermore any assessmentof the merits must take place against the background of the Supreme Court'sdescription of the nature of a general appeal in Austin, Nichols.15 On the basis of thesubmissions we have considered it is not apparent to us that the proposed appeal fallswithin the hopeless category envisaged by the Supreme Court.[22] The respondent emphasises that it and other creditors of Ms Skiffington'sestate will be prejudiced because the assets of the estate, which are said to be alreadyinsufficient, will be further depleted by an unmeritorious appeal. However suchprejudice arises not from the delay in bringing the appeal but as a consequence of theappeal itself. That is not prejudice in the sense envisaged by Almond v Read.[23] Consequently in our view the relevant factors weigh in favour of the grant ofan extension of time to bring the appeal.Result[24] The application for an extension of time to appeal under r 29A of the Court of Appeal(Civil) Rules 2005 is granted.13 Almond v Read, above n 7, at [39(c)].14 At [39(c)].15 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].[25] The respondent must pay the first applicant costs for a standard application on a bandA basis and usual disbursements.Solicitors:Parker & Associates, Wellington for First ApplicantGibson Sheat, Wellington for Respondent