Supreme Court confirms deemed abandonment of appeal arising from attempt to stop mortgagee sale

The Supreme Court’s registrar refused to accept the notice for filing upon determining that the certified result was the inaction’s automatic effect under the rules, rather than an appeal court decision. 

Last 11 July, as a single judge of the Supreme Court, Miller J dismissed the applicant’s application to review the registrar’s decision under r 5A(3) of the Supreme Court Rules 2004, as well as an application for recall. 

Miller J found that: 

• The Supreme Court had the jurisdiction to hear an appeal by a party to a civil proceeding in the appeal court under “a decision made in the proceeding” pursuant to s 68 of the Senior Courts Act 2016 
• The proposed appeal involved the prescribed operation of r 43(1) of the Court of Appeal (Civil) Rules, not a decision by the appeal court’s officer or judge 
• The deputy registrar simply confirmed that the prescription period under the rules had elapsed 
• The Supreme Court’s registrar correctly declined to accept the application for filing 

The applicant applied for review under s 82(4)(b) of the Senior Courts Act. He asserted the following appeal grounds: 

1. The appeal court failed to apply r 43(1B)(d) of the Court of Appeal (Civil) Rules 
2. The fact that the same judge delivered the recall judgment and the review judgment breached natural justice 
3. The review judgment had a factual error regarding an oral hearing before the High Court judge 
4. The case alleged constitutionally important matters 

Judgment upheld

The Supreme Court of New Zealand dismissed the application seeking to review Miller J’s judgment. The Supreme Court determined that: 

• The first appeal ground was misconceived because the applicant did not bring the application before the three-month limit expired 
• The second appeal ground likewise showed a misconception, as an applicant should necessarily apply for a recall to the judge who delivered the original judgment, with the right to request further review to other Supreme Court judges 
• The third and fourth appeal grounds were irrelevant because neither could impact the automatic application of the Court of Appeal (Civil) Rules 

The Supreme Court pointed out that the applicant had no appeal court decision to challenge due to the deemed abandonment of his appeal based on his inaction.