Malik v Syed

[2022] NZCA 551

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA92/2022
 [2022] NZCA 551

BETWEEN	AMIR FAZAL MALIK Appellant
AND	ZAINUL ABIDIN SYED First Respondent
AND	TRANSNATIONAL LIMITED Second Respondent
AND	PACIFIC MOTEL LIMITED Third Respondent
AND	SHAH FAMILY LIMITED Fourth Respondent

Court:	Cooper P and Brown J
Counsel:	Appellant in Person No appearance for Respondents
Judgment: (On the papers)	16 November 2022 at 11.00 am

JUDGMENT OF THE COURT

The appeal is struck out.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

A purported appeal

1. In February 2022 Mr Malik purported to appeal against a judgment of the High Court in which Robinson J declined an application for freezing orders.[1]  As that judgment dealt with an interlocutory matter, leave to appeal was required from the High Court under s 56(3) of the Senior Courts Act 2016.  In his notice of appeal Mr Malik asserted the High Court had granted him leave on 9 February 2022, the date of the judgment.  The Registry of this Court accepted his appeal for filing on 25 February 2022. 

   [1]Malik v Syed [2022] NZHC 136.

2. As it turns out, the High Court judgment did not mention any application for leave, nor did it grant Mr Malik leave to appeal.  Subsequent inquiries made by this Court indicated that no application for leave had been made to the High Court.

3. In a minute dated 21 June 2022 this Court directed Mr Malik to file a memorandum explaining why he had filed an appeal asserting that leave had been granted by the High Court when that was not the case.[2]  The minute stated that if a satisfactory explanation was not provided, his appeal would be struck out under r 44A of the Court of Appeal (Civil) Rules 2005 (the Rules).[3]

   [2]Malik v Syed CA92/2022, 21 June 2022 (Minute of Cooper P).

   [3]At [5].

4. Mr Malik filed a memorandum on 27 June 2022.  We have read that memorandum.  Mr Malik says he is a self-represented litigant.  On the matter of leave, he states:  

   Leave to appeal, seriously never heard about that either. 

5. We are satisfied leave to appeal was never granted by the High Court.  It follows that this Court has no jurisdiction to hear the appeal against the High Court judgment.[4]  The appeal should now be struck out under r 44A of the Rules.

   [4]Senior Courts Act 2016, s 56(3).

6. If Mr Malik still wishes to pursue this matter, he is still able to apply to the High Court for leave to appeal pursuant to s 56(3) of the Senior Courts Act.  Given the time that has passed since the High Court judgment of 9 February 2022, Mr Malik will need to ensure that he applies for an extension of time to apply for leave to appeal as well.[5]  Delays that have occurred in this Court dealing with the matter since 27 June 2022 should not be attributed to Mr Malik. 

   [5]An application for leave to appeal should be made within 20 working days after the date of the decision:  High Court Rules 2016, r 26.14; and see Senior Courts Act, s 56(3).  The deadline for filing an application for leave to appeal the High Court judgment was 9 March 2022.  However, the High Court may make an order for an extension of time despite that deadline having now passed:  see High Court Rules, r 1.19. 

7. If the necessary applications are made to the High Court, it will be for that Court to decide whether leave to appeal should be granted.