The application for an extension of time for applying for the allocation of a hearing date and for filing the case on appeal is dismissed.
The applicant must pay the respondent costs for a standard application for leave on a Band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] Mr Hunter (the applicant) sued his barrister, David Carden (the respondent), over the conduct of litigation brought by Mr Hunter’s former partner concerning properties purchased during their relationship. Mr Carden applied for and obtained summary judgment in the proceedings against him: HC AK CIV 2006-404-006282 20 December 2007. Mr Hunter appealed to this Court against the decision to grant summary judgment but he did not apply for a fixture or file the case on appeal within the six months provided for in r 43(1) of the Court of Appeal (Civil) Rules 2005. That means that his appeal is treated as having been abandoned: r 43(1). He now seeks an extension of the six month time period as provided for in r 43(2).

The background

[2] Before we address the merits of the present application we need to set out something of the background including the underlying litigation which has resulted in the present proceedings. The relevant facts are helpfully summarised by Associate Judge Abbott in the summary judgment decision as follows:

[5] Mr Hunter and his former partner parted in January 1998 after a relationship of some eleven years’ duration. In August 1998 the former partner issued a proceeding in [the High] Court claiming a share in the value of four properties purchased during their relationship. One was the property in which they had been living. The other three were investment properties.

[6] Mr Hunter engaged Mr Carden to act for him in June 2000. The hearing of the former partner’s claim, and a counter-claim by Mr Hunter, commenced on 30 October 2000. After opening statements by counsel for both parties the first day was largely taken up by the evidence of the former partner, including cross examination by Mr Carden.

[7] Mr Hunter was unhappy about the way the case went that day. He took issue with Mr Carden over the content of his cross examination of the former partner. The following morning Mr Hunter terminated his instructions to Mr Carden, and proceeded to conduct his own defence. He sought but was denied leave to recall the former partner for further cross examination. The case then proceeded with Mr Hunter giving evidence, and presenting closing submissions in person.

[8] The Judge found that the former partner had made contributions to all four properties in the reasonable expectation that she would acquire an interest in their value. He determined the parties’ respective contributions, and made an order awarding the former partner a share of the overall net equity relative to her contribution. [The decision is reported at (2000) 20 FRNZ 149].

[9] Mr Hunter appealed that decision. The Court of Appeal delivered its decision in September 2001 [now reported at [2001] NZCA 352; (2001) 21 FRNZ 28]. It accepted and corrected an error in the calculation of the net equity of the properties, but rejected Mr Hunter’s arguments that this Court had erred in taking a global approach to the parties’ contributions, that it had made errors in its findings of fact, and that it had wrongly refused leave for Mr Hunter to cross examine his former partner further.

[10] Mr Hunter issued [proceedings against Mr Carden] in October 2006. Mr Carden’s application for summary judgment was filed in June 2007.

The summary judgment decision

[3] Associate Judge Abbott in granting summary judgment concluded that Mr Hunter could not establish a breach of duty by Mr Carden and nor would he be able to prove that Mr Carden’s actions caused him loss.
[4] The Associate Judge in reaching this conclusion on the breach of duty issue identified four difficulties with this part of the claim, namely:

(a) Mr Carden, on receipt of instructions, explained to Mr Hunter the approach he would take and made it clear he would cross-examine on credibility only to the extent credibility became an issue;

(b) Ms Copland, Mr Hunter’s former partner, admitted Mr Hunter’s pre-relationship assets were not joint property;
(c) Mr Carden did cross-examine Ms Copland with a view to establishing a case based on her acceptance that the pre-relationship property and the inheritance were Mr Hunter’s separate property. He also cross-examined on the way the admittedly separate property was used in the property acquired during the relationship; and
(d) This Court accepted the issues were correctly addressed in the High Court and made a finding that Mr Carden’s cross-examination was “adequate” and “correctly put” the key matters.
[5] Associate Judge Abbott said the problems in terms of causation were two-fold. First, after he had dismissed Mr Carden, Mr Hunter had the opportunity to address any concerns both in the High Court and in the Court of Appeal. For example, he was asked in the High Court why he wanted to cross-examine Ms Copland further and he said only that there was an issue about income figures in two briefs of evidence that had not been read at trial.
[6] Secondly, the issues in Mr Hunter’s case were a matter of legal argument rather than of fact. That was how both the High Court and this Court saw the matter. The fact that the former property and the inheritance were Mr Hunter’s separate property was not in contention.

The present application

[7] The application for an extension of time is brought on the basis that there are good reasons which explain the delay and that the appeal has merit. The respondent accepts the delay is explicable but contends the application should be declined because the appeal is hopeless.

Evaluation

[8] As this Court said in Russell v Commissioner of Inland Revenue (2006) 22 NZTC 19,807, non-compliance with r 43 and the resulting need for leave “requires the exercise by this Court of a positive discretion”: at [10]. The factors identified in that case as relevant to the exercise of that discretion include whether the proposed appeal is “genuinely arguable”: at [10]. The present application turns on whether there is any merit in the proposed appeal.
[9] In terms of the merits, Mr Hunter says that the threshold for summary judgment was not met. The gravamen of his submissions is that he has an arguable case that Mr Carden breached his duty by not following his instructions and that failure caused him loss. The failure Mr Hunter relies on is that Mr Carden did not put it to Ms Copland that she made no claim on his separate property. As Associate Judge Abbott said at [11], Mr Hunter’s underlying complaint is that the effect of the decisions in the earlier litigation was:

[T]o give the former partner an interest in property that Mr Hunter owned before the relationship, and money received by inheritance during the relationship.

[10] In assessing the merits of this argument, we put to one side for the present the various difficulties with the claim against Mr Carden identified by the Associate Judge. We focus on whether it was possible Mr Hunter may have been better off if the case had been run differently because if his position could not have been improved, any failure by Mr Carden could not have caused any loss.
[11] Ms Copland’s claim was that she had an interest in the four properties purchased during the relationship. She sought a one-third share of the net value of the properties, namely, $685,000.
[12] It was accepted that Mr Hunter’s contributions to the properties included $242,00 from a property he owned before the parties’ relationship began and an inheritance of $165,000 he received in the course of the relationship. Ms Copland’s contributions included $100,000 provided by her parents. Ms Copland’s total contributions (direct and indirect) were reflected in a sum comprising one-third of the net value of the parties’ assets Doogue J having found that she had contributed in some way to all of the properties, ie, $228,000.
[13] Ms Copland’s claim was based on the common law principles developed in cases such as Gillies v Keogh [1989] 2 NZLR 327 (CA) and Lankow v Rose [1995] 1 NZLR 277 (CA). In the development and application of those principles, this Court has noted that there is a level of interrelationship with the statutory provisions. For example, in King v Church [2002] NZCA 67; [2002] NZFLR 555 at [17], this Court said that:

The very close similarity of the concepts of equity and of the [Matrimonial Property Act] 1963 ..., each relating relief to contribution, leads us to treat the latter as providing very valuable guidance by way of analogous legislative policy.

[14] The current equivalent to the 1963 Act referred to in King v Church, the Property (Relationships) Act 1976, of course recognises the concept of separate property. While the judge-made common law has marched some distance behind legislation in recognising claims to relationship property, in terms of disregarding the significance of separate property when assessing assets subject to relationship property claims it is the different statutory regime generally applicable to such property which represents the most advantageous position for Mr Hunter.
[15] However, if Ms Copland’s claim had been brought under the 1976 Act we have no doubt that this is a case in which a court would have treated the items of “separate property” or the proceeds of the disposition of that property as relationship property. The other possibility is that a court would have concluded that any increase in the value of the separate property was relationship property. That would result from the application of the following sections of the 1976 Act: s 8(1)(ee) which defines relationship property; s 9A which deals with when separate property becomes relationship property; and s 10 which deals with the effect of intermingling the proceeds of an inheritance with other relationship property (see also s 9(4)). The separate property applied by Ms Copland to the relationship property would no doubt have been treated in the same way.
[16] The inevitability of this conclusion is apparent from the reasoning of Doogue J and of this Court in the underlying litigation. In upholding Ms Copland’s claim, Doogue J expressly rejected Mr Hunter’s submission that contributions should be assessed by looking at each of the properties separately.
[17] The Judge said a global approach was the only fair one. That was in part because the way the parties had managed their affairs meant it was no longer possible to separate out their contributions. Further, Ms Copland had made substantial contributions to all of the properties. The $100,000 provided by her parents, for example, had given the parties flexibility in terms of their funding and purchasing arrangements. Finally, the Judge considered that Mr Hunter’s approach ignored the fact that “all expenditure during the union was for common good”: at [51].
[18] The Judge in quantifying Ms Copland’s resultant interest also rejected Mr Hunter’s submission that his asset contribution though the separate property should be deducted from the net value of the assets. His Honour said that approach would not take into account the $100,000 introduced by Ms Copland through her parents.
[19] On the appeal, Chambers J delivering the judgment of this Court said at [22] that “given the nature of the relationship and the interrelated nature of the properties in question” the Judge’s approach was not only an available one but also “plainly sensible”.
[20] It follows that it is not possible that Mr Hunter could have been better off had the case been run differently. For that reason, we agree with the respondent that the proposed appeal has no merit and on that basis this is not a case in which the discretion to extend time should be granted.
[21] We add that there is, in any event, force in the Associate Judge’s assessment of the various other difficulties with the claim.
[22] Finally, for completeness, we note that Mr Hunter also suggested the Associate Judge had not applied the correct test for summary judgment applications. There is nothing in this or in any of the other points raised by Mr Hunter. The Associate Judge applied the relevant test in an orthodox way.

Costs

[23] The respondent is entitled to costs in terms of the Court of Appeal (Civil) Rules, r 53G(1).

Solicitors:
Shieff Angland, Auckland for Respondent

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