JEC No 2 Limited v Official Assignee at Hamilton

[2014] NZCA 170

IN THE COURT OF APPEAL OF NEW ZEALAND

CA446/2013
[2014] NZCA 170

BETWEEN	JEC NO 2 LIMITED First Appellant
JEC NO 3 LIMITED Second Appellant
AND	THE OFFICIAL ASSIGNEE AT HAMILTON Respondent

Court:

Randerson, White and French JJ

Counsel:

Appellants in person
P V Cornege for Respondent

Judgment:

(On the papers)

7 May 2014 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is dismissed.

BThe appellants must pay the respondent costs as for a standard application on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by French J)

1. JEC No 2 Ltd and JEC No 3 Ltd (the appellants) have filed a notice of appeal against a decision of Associate Judge Faire made in the High Court.[1]  In his decision, the Associate Judge refused to set aside orders he had made at an earlier hearing declaring certain transactions irregular and vesting the subject properties in the Official Assignee under s 206 of the Insolvency Act 2006.  The orders had been made in the absence of the appellants due to their failure to comply with timetabling directions and give instructions to their counsel.

   [1]JEC No 2 Ltd v The Official Assignee at Hamilton [2013] NZHC 1352.

2. The appellants failed to comply with the timeframes under r 43 of the Court of Appeal (Civil) Rules 2005 for prosecuting their appeal and accordingly seek an extension of time under r 43(2).

3. All parties have agreed to the application being dealt with on the papers.

4. We are not prepared to grant an extension of time.  The decision under appeal was a decision made by an Associate Judge pursuant to r 15.13 of the High Court Rules.  It was a matter falling within his chambers jurisdiction and accordingly under s 26P(1) of the Judicature Act 1908 any challenge to the decision can only be by way of review proceeding in the High Court.  This Court does not have jurisdiction to hear the appeal.  It is well established that time will not be extended for an appeal under r 43(2) when the appeal is not genuinely arguable.

5. The fact that this Court does not have jurisdiction was drawn to the attention of the appellants in an earlier decision in October 2013 declining to dispense with security for costs.[2]  Further, according to information filed by the Official Assignee, even before the appellants received that decision, the appellants themselves knew there was no jurisdiction.  In an affidavit sworn on 24 September 2013, the appellants advised the High Court that having taken advice they wished to abandon their appeal in this Court and proceed by way of review in the High Court.  It appears that because the review proceedings were ultimately unsuccessful in the High Court, the appellants are now attempting to revive the appeal.  As submitted by the Official Assignee, this amounts to an abuse of process.

   [2]JEC No 2 Ltd v The Official Assignee at Hamilton [2013] NZCA 501 at [9].

6. We note too that the appellants have failed to pay security for costs ordered in October 2013.

Outcome

1. The application for an extension of time is dismissed.  The appeal is to be treated as abandoned.  We also award costs to the Official Assignee as for a standard application on a band A basis together with usual disbursements.

Solicitors:
Almao Douch, Hamilton for Respondent