Misbin and Misbin v USG Interiors Pacific Limited

IN THE COURT OF APPEAL OF NEW ZEALAND
CA799/2008
[2009] NZCA 379
BETWEENHARVEY ALLEN MISBIN

First Appellant
ANDJUBITA HAYDEE MISBIN

Second Appellant

ANDUSG INTERIORS PACIFIC LIMITED

Respondent

Hearing:18 August 2009

Court:Glazebrook, Robertson and Ellen France JJ
Counsel:E Orlov and N Adjei for Appellants

M R Crotty and G A Lawery for Respondent

Judgment:26 August 2009 at 4.00 pm

JUDGMENT OF THE COURT

A The application for an extension of time is dismissed.
BThe appellants must pay to the respondent’s costs for a standard application on a Band A basis plus usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
[1]       Mr and Mrs Misbin have purported to appeal against a decision of Cooper J of 3 November 2008: ANZA Distributing New Zealand Ltd (In Liquidation) v USG Interiors Pacific Ltd HC AK CIV 2007-404-3474.
[2]       They apply for an extension of time under r 43(2) of the Court of Appeal Rules (Civil) 2005, as no steps have been taken in relation to the appeal.
[3]       The application is declined for the following reasons.
[4]       We accept the respondent’s submission that Mr Misbin has no standing to appeal as he was not a party to the High Court proceedings. The plaintiff in the High Court was ANZA. That company is in liquidation and the liquidator has not consented to the appeal (or indeed to the proceedings before Cooper J).
[5]       The position with Mrs Misbin may not be so clear cut. She, unlike Mr Misbin, was a director and shareholder of ANZA and Mr Orlov says that there was an application by her to bring proceedings on ANZA’s behalf which was wrongly brushed aside by Cooper J.
[6]       Even if this is the case, as the respondent has pointed out, nothing has been put before the Court to suggest that there is any realistic prospect that Mrs Misbin will be able to pursue her appeal. It is not appropriate to grant an extension of time in such circumstances.
[7]       In any event, we are by no means convinced that there is any merit in the appeal. Mr and Mrs Misbin assert that the District Court was misled in its grant of summary judgment against ANZA and that this meant Cooper J should have set the judgment aside. The respondent strenuously denies this allegation.
[8]       The entry of summary judgment was, however, agreed to by ANZA’s then counsel. This means that it was accepted before the District Court that ANZA owed the amounts in question. On its face, that justified the entry of summary judgment. The respondent was entitled to rely on the actions of ANZA’s counsel and there was no need to put any further documentation before the Court. If counsel acted without authority, that would be a matter for Mr and Mrs Misbin to take up with counsel.
Result
[9]       The application for an extension of time is dismissed.
[10]     The appellants must pay to the respondents costs for a standard application on a Band A basis plus usual disbursements.
Solicitors:
Botany Law, Auckland for Appellants
Russell McVeagh, Auckland for Respondent

CaseChat Overview and Summary

The case of Misbin and Misbin v USG Interiors Pacific Limited involves Harvey Allen Misbin and Jubita Haydee Misbin, appealing against a decision rendered by Cooper J on 3 November 2008 in the case of ANZA Distributing New Zealand Ltd (In Liquidation) v USG Interiors Pacific Ltd. The Misbins seek an extension of time under rule 43(2) of the Court of Appeal Rules (Civil) 2005, as they have not yet taken any steps in relation to the appeal. The primary legal issues before the Court of Appeal were whether the Misbins had standing to appeal, and if there was any merit to the appeal itself. The Court had to determine if Mr Misbin, who was not a party to the High Court proceedings, had the right to appeal, and if Mrs Misbin, a director and shareholder of ANZA, could pursue her appeal despite the lack of consent from the liquidator.

The Court of Appeal held that Mr Misbin did not have standing to appeal as he was neither a party to the High Court proceedings nor had he obtained consent from the liquidator of ANZA, which was the plaintiff in the High Court. Even though Mrs Misbin was a director and shareholder of ANZA, the Court found that there was no realistic prospect that she could pursue her appeal. The Court was not convinced that there was any merit in the Misbins' assertion that the District Court was misled in granting summary judgment against ANZA. The Court found that the entry of summary judgment was agreed upon by ANZA's then counsel, justifying the entry of summary judgment and relieving the respondent of any further need to present documentation. The Court was of the view that if ANZA's counsel acted without authority, it was a matter for the Misbins to address with the counsel.

The Court dismissed the application for an extension of time and ordered the appellants to pay the respondent's costs for a standard application on a Band A basis plus usual disbursements. The Court of Appeal ruled that the Misbins did not have standing to appeal and that there was no merit in their appeal, effectively dismissing their case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established