Avison v McFarlane

IN THE COURT OF APPEAL OF NEW ZEALAND

CA498/2014
[2014] NZCA 469

BETWEEN	NGAIRE JANE ELIZABETH AVISON Applicant
AND	WAYNE JAMES MCFARLANE, NGAIRE JANE ELIZABETH AVISON AND DAVID WILLIAM BUTLER AS TRUSTEES OF THE AVIAN TRUST First Respondents
WAYNE JAMES MCFARLANE Second Respondent

Counsel:

J C Gwilliam for Applicant
R J B Fowler QC for Respondents

Judgment:

(On the papers)

25 September 2014 at 3.00 pm

JUDGMENT OF FRENCH J

AThe application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 is granted.
BThe appeal must be lodged within five working days of the date of this judgment.
CThere will be no order as to costs.

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REASONS

The applicant wishes to appeal a decision of Associate Judge Smith delivered in the High Court at Wellington on 12 August 2014.[1]
[1]Avison v McFarlane [2014] NZHC 1889.
The last day for filing a notice of appeal was 9 September 2014.
The application for an extension of time, made under r 29A of the Court of Appeal (Civil) Rules 2005, was filed on 11 September 2014.
The delay arose out of the need to obtain better instructions from Ms Avison as to whether she wished to pursue an appeal given that the proceedings are still live in the High Court and have not yet been fully determined.
The first and second respondents consent to the application being granted. I am satisfied that it may be dealt with on the papers and that the application should be granted. The delay is minimal, there is a reasonable explanation for the delay and there is no prejudice to the respondents. It is in the interests of justice to grant the application.
The appeal must be lodged within five working days of the date of this judgment.
There will be no order as to costs.

Solicitors:
Main Street Legal, Upper Hutt for Applicant
Grigg & Le Page, Lower Hutt for Respondents

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Ngaere Jane Elizabeth Avison for an extension of time to appeal a decision made by Associate Judge Smith in the High Court at Wellington on 12 August 2014. The application was made under rule 29A of the Court of Appeal (Civil) Rules 2005, with the last day for filing a notice of appeal being 9 September 2014. The application was lodged on 11 September 2014, and both the first and second respondents consented to the application being granted. The delay in lodging the application arose from the need to obtain better instructions from Ms Avison regarding her intention to pursue an appeal, given that the proceedings were still ongoing in the High Court.

The court was required to determine whether the application for an extension of time should be granted, considering factors such as the minimal delay, the reasonable explanation for the delay, and the lack of prejudice to the respondents. Additionally, the court had to consider whether granting the application was in the interests of justice.

The Court of Appeal granted the application for an extension of time to appeal, noting that the delay was minimal, there was a reasonable explanation for the delay, and there was no prejudice to the respondents. The court also found that granting the application was in the interests of justice. The applicant was required to lodge the appeal within five working days of the date of the judgment, and there was no order as to costs.

The court's decision allows Ms Avison to pursue her appeal within the specified timeframe, while ensuring that the respondents were not prejudiced by the delay. The outcome reflects the court's commitment to balancing the interests of justice with the procedural requirements of the Court of Appeal (Civil) Rules 2005.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established