Brent Hubbard and Harley Haynes failed in their time extension application. Photo / Dean Purcell
Ex-KiwiRail tenant palm farmers trying to challenge a court decision have failed in their seventh attempt to get more time to bring their case, the court's patience being finally exhausted.
On Tuesday, the Supreme Court rejected the application from Brent Hubbard and Harley Haynes, whose business owes the state-owned rail enterprise hundreds of thousands of dollars in rent.
The men wanted more time to be granted an extension, after their seventh attempt.
The pair once rented KiwiRail land in Onehunga to grow exotic palms and for years have been trying to challenge KiwiRail's moves to increase their rent and liquidate their business.
Their Oceanic Palms is in liquidation, owing creditors $392,000 but with only $2000 in assets. KiwiRail claimed $232,833 from the business, which Companies Office records show is now removed from the register.
"The proposed appeal to the Court of Appeal would have challenged a decision of Associate Judge Smith ordering the liquidation of a company called Oceanic Palms and refusing to stay the decision pending other litigation," the Supreme Court decision out this week said.
Hubbard and Haynes were directors of Oceanic Palms and they once grew their plants on surplus KiwiRail land near the railway line. But when they didn't pay the rent they were liable for, KiwiRail had their company liquidated.
The pair have for years tried to challenge that, claiming Oceanic Palms was solvent. They disputed KiwiRail's claim for back rent, which formed the substantial part of the claim for liquidation.
The men claimed a previous court decision was wrong "because it did not recognise the obligation of KiwiRail as a state-owned enterprise to exercise consideration of the social good in its decisions", the latest decision said.
"They wish to argue that the order for liquidation of Oceanic Palms was made contrary to that legal obligation and that, as a result, justice has not been done to Oceanic Palms and its directors, nor to other concerns who were tenants of KiwiRail. They also say that, in evicting Oceanic Palms, KiwiRail has not acted properly."
KiwiRail opposed the men's attempt to appeal a decision it had already won. It says the liquidation is being concluded.
But Hubbard and Haynes wanted to argue KiwiRail's decision to increase Oceanic Palms' rent was made in bad faith, contrary to the duties and responsibilities of a state-owned enterprise and was unreasonable.
The Supreme Court noted how those claims had already been determined in KiwiRail's favour in previous court proceedings.
The palm farmers also wanted to argue the rent calculations KiwiRail relied on were corrupt. But the Supreme Court said valuations KiwiRail relied on were found by the Court of Appeal to be reasonable in a previous decision.
Hubbard and Haynes wanted to argue they were unaware of the time limits in the statutory demand notice for the unpaid rent. The Supreme Court found this argument implausible because the time limits for paying the money were clearly set out in the statutory demand, it said.
Any appeal was also now likely to be moot because Oceanic Palms' liquidation was almost complete, the Supreme Court noted.
Hubbard and Haynes filed their application for leave in the Supreme Court on July 22 last year.
"Since then they sought and were granted extensions of time to file their submissions on seven occasions. These extensions of time were primarily to allow for a response to be provided to a request for information from KiwiRail made under the Official Information Act," this week's decision noted.
Hubbard and Haynes said the further information was needed so they could advance their arguments.
More time was also necessary because of the difficulties they say they faced as lay litigants and to ensure, consistently with the principles of natural justice, they were able to fully present their case before the court.
When the men sought their seventh time extension to allow them to prepare their submissions and to seek discovery from KiwiRail, the Supreme Court said it issued a minute on June 5, 2020 which said it considered sufficient allowances had been made for any difficulties due to them being lay litigants.
The minute recorded that the men would need to file their submissions by June 29.
If those didn't arrive by then, Hubbard and Haynes were told no further time extensions would be granted.
On June 29, the pair asked for yet another extension - their eighth - and this time for four months.
They said that was for various reasons including to await work from the Ombudsman's Office on the OIA request.
But the court had had enough.
"We formally decline that application," the Supreme Court said on Tuesday.
The men had have been given considerable leeway to date, it noted.
"The central point the applicants wish to make in the proposed appeal is clear from the material we have and it is a point that has been well‑ventilated," the decision said.
"In addition, as was set out in our minute, we accept the submission from KiwiRail that the further material the applicants say they still need to obtain from KiwiRail is not relevant to whether the criteria for leave are met or to the underlying issue of whether Oceanic Palms was insolvent," the decision said.