Jung v Templeton

[2012] NZCA 172

IN THE COURT OF APPEAL OF NEW ZEALAND

CA837/2011
[2012] NZCA 172

BETWEEN  DYLAN DAE BONG JUNG AND YANG HEE SHIN
Applicants

AND  WARREN GEORGE CROFT TEMPLETON
Respondent

Hearing:         3 April 2012

Court:             Ellen France, Harrison and White JJ

Counsel:         D D B Jung in person
N Till QC for Respondent

Judgment:      4 May 2012 at 3 p.m.

JUDGMENT OF THE COURT

AThe application for an extension of time is dismissed.

BThe applicants must pay the respondents costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

1. This is an application for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 to appeal a decision of Venning J.  Venning J rejected the applicants’ claim that the respondent breached the duty he owed to them as counsel.[1]

Background

[1]      Jung v Templeton HC Auckland CIV-2007-404-5383, 5 November 2009.

1. The applicants, Dylan Dae Bong Jung and Yang Hee Shin, bought a unit subject to a building inspection.  The report resulting from that inspection said the unit was in good condition but identified remedial work that needed to be done.  The applicants did not follow up potential leaking/water damage issues apart from trying to negotiate a lower price.  The applicants instructed their solicitors to make the sale unconditional.  After settlement, it became apparent that the unit was leaky, and the cost of repairs was estimated at $125,000 plus GST.

2. Ultimately, the applicants bought proceedings in the High Court against the Auckland City Council in relation to the unit.  The legal services provided by the respondent, Warren Templeton, related to that claim.  The matter went to mediation resulting in a settlement agreement.  The applicants subsequently claimed that agreeing to the settlement was a mistake.  They blamed the respondent.  In particular, the applicants said Mr Templeton did not rebut the Council’s allegation of contributory negligence against the applicants, a claim made during the course of the mediation.

3. As noted, Venning J rejected the claim against the respondent.  The application for an extension of time to appeal against this decision is opposed.

Discussion

1. The test for whether an extension of time to appeal should be granted under r 29A is as expressed in My Noodle Ltd v Queenstown-Lakes District Council:[2]

   A number of factors are relevant to a decision as to whether time to appeal should be extended, including the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay: ... .  The overall test, however, is whether granting an extension would “meet the overall interests of justice”: Havanaco Ltd v Stewart (2005) 17 PRNZ 622 at [5] (CA).

   [2]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].

2. The proposed appeal is two years out of time.  The applicants say first that there was a delay in obtaining the “original conveyance file” and they instructed their then lawyer to file an appeal in April 2010, but the lawyer failed to do so.  Second, as an alternative to an appeal they pursued complaints against the respondent and others to the New Zealand Law Society.

3. The delay is significant and is not adequately explained.  Even if the applicants’ lawyer was at fault in not filing an appeal when instructed, the appeal at that point would have been nearly five months out of time.  There is no explanation for the following delay of over a year and a half.

4. The other factor we need to consider is the merits of the proposed appeal.  The applicants rely on what they claim are various forgeries and perjury by the respondent and others.  For example, the applicants say that Venning J was misled by incorrect documents to find that the original solicitors did not receive the building inspection report until 3 February 2003, the date on which the agreement for the purchase of the unit was declared unconditional.  The applicants seek to advance evidence that the correct date of receipt of the report by the solicitors was 1 February 2003.  The applicants state that, based on the alleged forgery and perjury, the High Court hearing was not conducted under fair or correct procedures.  Therefore a hearing based on the “true evidence” is needed.

5. The respondent denies the claims of forgery and perjury.  The respondent also says the new evidence is neither fresh nor cogent.  Even if it was appropriate for us to resolve questions about the accuracy of the claims at this stage, there is no need for us to do so.  We agree with the respondent that, even if correct, these claims would not necessarily assist the applicants.  That is because the decision of Venning J turned not on the knowledge of the applicants’ then solicitors but on the conduct of the applicants themselves.  The documents the applicants rely on are not relevant to the latter.  Further, all the allegedly forged documents, except for the original solicitor’s file notes and a letter relating to renovations on the property, post-date 7 February 2003.  This was the settlement date for the purchase of the property.  Those documents could not therefore have affected the outcome of the High Court decision.

6. No good reason is advanced as to how the documents pre-dating 7 February 2003 could have affected the contributory negligence of the applicants, or made any difference to the outcome.

7. We add that one of the documents pre-dating the settlement is a file note dated 3 February 2003 prepared by the applicants’ then solicitor.  The note records instructions to make the agreement unconditional.  Venning J observed that the note suggested the solicitors did not then have a copy of the building inspection report.[3]  The applicants challenge the authenticity of this file note and the two notes prepared by the solicitor dated 4 February 2003.  The three notes are linked in time.  Venning J specifically addressed a suggestion made by Dr Jung that the first note of 4 February was forged.  The Judge described this claim as “an extraordinary suggestion” noting that the solicitor was called as a witness for the applicants.[4]

   [3] At [53].

   [4] At [55].

8. There is accordingly nothing raised by the applicants that suggests the proposed appeal has any merit.

9. Given the extensive delay, the inadequacy of the explanation for that delay and the lack of merit in the proposed appeal, it is not in the interests of justice to grant an extension of time.

Result

1. The application for an extension of time is dismissed.  The applicants having failed must pay the respondents costs for a standard application on a band A basis and usual disbursements.

Solicitors:
Robertsons Law, Auckland for Respondent