Jones v 74 Albert Street Ltd

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeGlazebrook,Wild,White JJ
Judgment Date14 February 2012
Neutral Citation[2012] NZCA 11
Date14 February 2012
Docket NumberCA726/2011

[2012] NZCA 11

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Glazebrook, Wild and White JJ

CA726/2011

BETWEEN
Cecelia Elizabeth Jones
Applicant
and
74 Albert Street Limited
Respondent
Counsel:

W T Nabney for Applicant

S J Corlett for Respondent

Application for extension of time to appeal against High Court judgment ordering removal of a notice of claim over property — applicant pursuing relationship property claim in Family Court for division of assets — property registered in husband's name — applicant's protected interest under s s20B Property (Relationships) Act 1976 (PRA) (protected interest in family home) limited — creditors had obtained orders for sale and for removal of notice of claim — delay of 41 days in filing application explained by inability to raise funds to pursue appeal — whether delay in filing the appeal out of time was sufficiently justified on ground of inability to raise funds — whether the applicant's entitlement to a protected interest over the property justified the plea for extension of time.

The issues were: whether the inability to raise funds to pursue an appeal sufficiently justified the delay in filing the appeal out of time; and whether Mrs Jones' entitlement to a protected interest over the property was sufficient to justify the plea for extension of time.

Held: Mrs Jones' explanation for the delay of 41 days did not justify an extension. A prospective appellant could seek deferral of payment of security of costs under r35(6)(d) Court of Appeal (Civil) Rules 2005 (order deferring date by which security must be paid). The inability to raise security was not sufficient justification for not appealing in time. Mrs Jones was represented by counsel throughout and would have been aware of her ability to apply for waiver of the filing fee and dispensing with the security.

Both ASL and Westpac would be materially prejudiced if the leave application were to be granted. The steps they had taken for removal of the notice of claim, and to obtain a sale order, as well as the mortgagee sale steps taken by Westpac, would all be put on hold for no good reason.

It was unlikely that the rights of a creditor such as ASL could be defeated by a claimant bringing an application for possession of property, as that would deny access for the creditor to the assets which s20A PRA expressly contemplated. While Mrs Jones would be entitled to her protected interest of limited amount, she had no realistic ability to find the funds payable to Westpac for which she was liable. Her application for partition of the property would not prevent ASL and Westpac from proceeding with the sale of the property and recovering their debts. Mrs Jones' appeal had no real prospects of success. The overall interests of justice lay with declining the extension of time.

Application for extension of time to appeal dismissed.

JUDGMENT OF THE COURT
  • A The application for an extension of time to appeal is dismissed.

  • B The applicant must pay the respondent costs for a standard application on a Band A basis with usual disbursements.

REASONS OF THE COURT

(Given by White J)

Introduction
1

Mrs Jones applies under r 29A for an order granting an extension of time to appeal against a judgment of Associate Judge Doogue in the High Court at Tauranga on 23 August 2011 ordering the removal of a notice of claim by Mrs Jones under s 43 of the Property (Relationships) Act 1976 (the Act) over her husband's farm property (the property). 1

Background
2

Mr and Mrs Jones live together on the farm property which is registered in his name. The property, which had an estimated value of $820,000 in February 2011, is subject to a mortgage to Westpac of approximately $450,000.

3

In 2006, apparently without his wife's knowledge, Mr Jones contracted with 74 Albert Street Ltd (74 ASL) to purchase three apartments, but failed to settle the purchases. In August 2010 74 ASL issued summary judgment proceedings against Mr Jones in the Tauranga High Court.

4

Before the summary judgment proceeding was determined, Mrs Jones registered her notice of claim over her husband's property on the basis of her marriage to him.

5

In December 2010 74 ASL obtained summary judgment against Mr Jones for $610,246.95 and subsequently a final charging order over Mr Jones property for that amount.

6

In February 2011 Mrs Jones declined 74 ASL's request that she remove her notice of claim.

7

In March 2011 Mrs Jones commenced Family Court proceedings seeking a number of orders, including an order for the division of the parties' relationship

property “so as to achieve a just division of their property” in accordance with the Act and an order that she occupy the family home on the property.
8

In April 2011 74 ASL applied to the...

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1 cases
  • Jones v 74 Albert Street Limited Coa
    • New Zealand
    • Court of Appeal
    • 14 February 2012
    ...COURT OF APPEAL OF NEW ZEALAND CA726/2011 [2012] NZCA 11 BETWEEN CECELIA ELIZABETH JONES Applicant AND 74 ALBERT STREET LIMITED Respondent Hearing: 7 February 2012 Court: Glazebrook, Wild and White JJ Counsel: W T Nabney for Applicant S J Corlett for Respondent Judgment: 14 February 2012 at......

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