Wilson v ASB Bank Limited

[2024] NZCA 578

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA203/2024
 [2024] NZCA 578

BETWEEN	KIRAN BETHEL WILSON Applicant
AND	ASB BANK LIMITED Respondent

Court:	Cooke and Collins JJ
Counsel:	Applicant in person S C D A Gollin and R A H Laugesen
Judgment: (On the papers)	11 November 2024 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is declined.

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

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

1. Mr Wilson applies for an extension of time to bring an appeal under r 29A of the Court of Appeal (Civil) Rules 2005. 

2. The proposed appeal is against a decision of the High Court granting an application by ASB Bank Ltd (ASB) under s 357 of the Property Law Act 2007 (the Act) for substituted service of a notice under s 119 of the Act.  The order in issue was made in a minute by Wilkinson-Smith J on 19 February 2024.  Mr Wilson, who is self‑represented, filed his application 14 days after the expiry of the appeal period.

Background

1. ASB entered into a loan agreement with Mr Wilson in May 2023.  The loan was secured by way of a mortgage.  Mr Wilson subsequently defaulted.  ASB then took steps to serve notice as required under s 119 of the Act but was unable to do so. 

2. ASB filed an originating application in the High Court under s 357 of the Act seeking an order for substituted service of the s 119 notice, which was granted.  This is the order made by Wilkinson-Smith J that Mr Wilson wishes to appeal. 

Rule 29A

1. The principles relevant to considering applications under r 29A are well established.  In Almond v Read, the Supreme Court identified matters that are relevant.[1]  They include:[2]

   (a)the length of the delay;

   (b)the reasons for the delay;

   (c)the conduct of the parties, particularly of the applicant;

   (d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and

   (e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.

   [1]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].

   [2]At [38].

2. The ultimate question, however, is always the interests of justice.[3] 

   [3]At [38].

3. As the Supreme Court explained in Almond v Read, the merits of a proposed appeal may be relevant but those merits may not be able to be considered in any depth.[4]  There will be cases in which the merits will be overwhelmed by other factors such as the length of the delay and prejudice to the respondent.[5]

   [4]At [39].

   [5]At [39(a)].

4. The grounds of Mr Wilson’s application are opaque.  His application alleges:

   (a)he was not informed of the application for substituted service;

   (b)he is facing financial hardship; and

   (c)he seeks a repayment extension of one year from ASB.

5. Mr Wilson explains the delay in him filing his application was due to him being overseas for six months. 

6. We are satisfied that this is a case in which the merits of the proposed appeal are so lacking that the prospects of success are almost non-existent.  The proposed appeal is an attempt by Mr Wilson to challenge his obligations under a mortgage agreement.  He does not explain how that argument could possibly succeed. 

7. Furthermore, it is very difficult to ascertain what a successful appeal would achieve given that service of the s 119 notice has now been achieved.[6]

Result

[6]See Bujak v Monasterio [2009] NZCA 516 at [9].

1. The application for an extension of time to appeal is declined. 

2. The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

Solicitors:
MinterEllisonRuddWatts, Auckland for Respondent