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GLW Group Limited (In Liquidation) v/s Lepionka & Company Investments Limited & Others

    CA No. 60 of 2018
    Decided On, 28 February 2019
    At, Court of Appeal of New Zealand
    For the Appellant: D.W. Grove, Advocate. For the Respondents: M.D. O’Brien QC, M.G. Colson, Advocate.

Judgment Text

(Given by Cooper J)

[1] On 21 December 2018 a notice of abandonment of this appeal was filed. It recorded the respondents consented to the appeal being discontinued and that there was no issue as to costs. The notice was in the standard form, and contained notice that the appellant did not intend to prosecute the appeal further, abandoned all further proceedings concerning the appeal and discontinued the proceeding.

[2] However, on 20 December 2018, Mr Garth Paterson filed a memorandum which amounted effectively to an application that he be added as an appellant. Mr Paterson had been a party to the proceeding in the High Court, where GLW Group Ltd was the first plaintiff and Mr Paterson the second.[1] Although GLW Group Ltd appealed, Mr Paterson did not. The appeal was filed on 2 February 2018, and Mr Paterson took no steps in respect of this appeal until filing his memorandum on 20 December 2018.

[3] In Humphries v Carr, there was discussion of the effect of a notice of abandonment.[2] In that case, the appellant who had abandoned the appeal sought to set aside the notice of abandonment as a consequence of subsequent developments in litigation in the High Court. The majority, Glazebrook and Ellen France JJ, noted that the effect of abandonment of a civil appeal under r 44 of the Court of Appeal (Civil) Rules 2005 had not been authoritatively determined. They found it unnecessary to reach a final view on that issue because whether or not abandonment led to dismissal, the applicant who wished to have his or her notice of abandonment set aside was required to meet a high threshold.[3] It was not met in that case. William Young P took the view it was clear that abandonment under r 44 was not tantamount to a dismissal of the appeal, and consequently did not give rise to a res judicata. As he put it:[4]

Rather, it simply terminated the original appeal. On this approach the issue is whether to extend time for lodging a further appeal.

[4] We are not concerned in the present case with any issue of deemed dismissal or res judicata. Nor is this a case where the party filing the notice of discontinuance seeks to set it aside. In this case, the applicants are not parties to the appeal, and we are simply required to consider whether, the sole appellant having abandoned the appeal under r 44 by means of a complying notice, an application to be added as an appellant filed by another party immediately prior to the notice of abandonment being filed can have the effect of keeping the appeal on foot.

[5] In accordance with the judgment of William Young P in Humphries v Carr, we consider the effect of a notice filed under r 44(1) is to terminate the appeal. Once an appeal is filed, the question of whether any party should be added is one that would have to be considered and determined by the court. Mr Paterson’s memorandum of 20 December had not been considered and could not, by the mere act of filing it, have the effect of adding him as a party to the appeal. That is especially so since, as is plain, the actual parties to the appeal would have opposed the addition of an appellant. Mr Paterson’s memorandum was not in our view effective to keep the appeal on foot.

[6] Mr Paterson’s memorandum has led to a voluminous exchange of memoranda between him and counsel for the appellant and the respondents. Another party, LW354 Ltd has now also filed a memorandum in which it too seeks to be added to the appeal. Its ability to do so has been challenged by counsel for the parties to the abandoned appeal and has led to a further exchange of memoranda.

[7] We do not need to examine the detail of the various memoranda filed. But we make two observations about the material relied on. First, insofar as Mr Paterson is concerned, the argument that he purports to raise as a trustee in respect of an interest in property on behalf of his two sons involves issues that were not canvassed in the litigation in the High Court. As Mr O’Brien QC notes in his memorandum of 23 January 2019, Mr Paterson made no attempt either prior to or at the High Court trial to raise causes of action or arguments based on a trust arrangement involving him or his sons. We conclude that even if there were jurisdiction to grant the application for him to be added as an appellant, there would be no point in doing so because the issue he seeks to pursue was not one determined by the High Court. This Court sits only as a court of appeal.

[8] Similarly, in relation to LW354 Ltd, although there is a tension between the factual circumstances alleged by Ms Elizabeth O’Neil and counsel acting for LW354 Ltd, it appears to be suggested that there were relevant trustee obligations somehow transferred from Mr Paterson to LW354 Ltd subsequent to 13 November 2018.

[9] The judgment of Fitzgerald J under appeal was delivered on 14 December 2017. To the extent that LW354 Ltd’s argument appears to rest on the same trusts that Mr Paterson asserts in favour of his sons, once again the arguments were not presented to the High Court. But in the case of LW354 Ltd, it was not incorporated until 13 November 2018, 11 months after the judgment was delivered and nine months after the notice of appeal was filed.

[10] These would be unpromising contextual circumstances for any argument relying on an asserted discretionary power of the court to add an appellant once the sole appellant on the record had abandoned an app

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eal. We would not exercise that discretion in favour of Mr Paterson or LW354 Ltd, even if it existed. [11] However, we are satisfied the jurisdiction does not exist. We decline the applications for the joinder of Mr Paterson and LW354 Ltd as appellants accordingly. [12] As costs have not been sought, there is no order as to costs. ----------------------------------------------------------------- [1] AFI Management Pty Ltd v Lepionka & Co Investments Ltd [2017] NZHC 3116. [2] Humphries v Carr [2009] NZCA 608. [3] At [17]. [4] At [27].