Apatu v Apatu

[2012] NZCA 259

IN THE COURT OF APPEAL OF NEW ZEALAND

CA354/2011
[2012] NZCA 259

BETWEEN  ASHLEY KANARA APATU
Applicant

AND  KENNETH TAMA TE KAPUA APATU
First Respondent

AND  NATHAN WIRIHANA APATU AND KATHERINE LOUISE BATES
Second Respondents

Hearing:         12 June 2012

Court:             Glazebrook, Randerson and Wild JJ

Counsel:         No appearance for Applicant
M Macfarlane for Respondents

Judgment:      20 June 2012 at 3.00 pm

JUDGMENT OF THE COURT

The application for an extension of time to file a case on appeal is declined.

REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

1. Mr Apatu has applied for a six month extension of time to file a case on appeal.  The underlying appeal is against a decision of Joseph Williams J dismissing a claim by Mr Apatu and his sister, Ms Mauger,[1] against the executors of their father’s estate.[2]

Our assessment

[1]Ms Mauger does not appear to have associated herself with this application or with the appeal. She was named as an appellant on the original notice of appeal, but not the amended one (see at [2] below) filed at the request of Arnold J.

[2]Apatu v Apatu HC Napier CIV-2009-441-515, 10 May 2011.

1. The respondents oppose Mr Apatu’s application and submit that, in any event, the appeal is already deemed abandoned by virtue of r 30(3) of the Court of Appeal (Civil) Rules 2005.  This is because Arnold J’s minute of 19 October 2011 requiring Mr Apatu to remedy his defective notice of appeal has not been satisfactorily complied with.  We accept that submission.  The amended notice of appeal filed on 18 November 2011 still fails to identify with clarity the alleged errors of the trial judge.[3]

   [3]Apatu v Apatu [2011] NZCA 616 at [7].

2. We also note that Mr Apatu has failed to pay the security set within the extended time allowed by Arnold J.[4]  This would justify an order striking out the appeal.

   [4]Arnold J extended the time for payment to 3 February.  Security still has not been paid.

3. It also appears from the material filed by Mr Apatu that his proposed appeal is directed at matters of fact not law.  We accept the respondents’ submission that Mr Apatu’s complaints amount to no more than that the trial judge failed to accept Mr Apatu’s version of the facts.  The appeal therefore would appear to have no prospect of success.

4. In addition, Mr Apatu gives no explanation for his delay in prosecuting the appeal.  He maintains that he wishes to apply for legal aid but does not explain why it has taken him this long to begin that process, the original notice of appeal having been filed on 8 June 2011.

5. Finally, there is an added complication.  Mr Apatu was adjudicated bankrupt on 31 May 2012.  The Official Assignee on 11 June 2012 has disclaimed any interest in the litigation.[5]  As matters currently stand therefore, Mr Apatu cannot pursue his appeal in any event,[6] although we do note that he could apply to have the disclaimed asset vested in him under s 119(2) of the Insolvency Act 2006.[7]

Result

[5]Insolvency Act 2006, s 117.  The Official Assignee was excused from appearing at the hearing of this application.

[6]Insolvency Act, s 118.

[7]      We also note Insolvency Act, s 226.

1. For all the above reasons, Mr Apatu’s application for an extension of time to file a case on appeal is declined.  As noted above, the appeal has already been deemed abandoned.

Solicitors:
Sainsbury Logan & Williams, Napier for Respondents