Allied Concrete Limited v Meltzer

[2013] NZCA 536

IN THE COURT OF APPEAL OF NEW ZEALAND

CA351/2013
[2013] NZCA 536

BETWEEN	ALLIED CONCRETE LIMITED Appellant
AND	JEFFREY PHILIP MELTZER AND LLOYD JAMES HAYWARD AS LIQUIDATORS OF WINDOW HOLDINGS LIMITED (IN LIQUIDATION) Respondents

Counsel:

J V Ormsby for Appellant
B P Keene QC and J F Anderson for Respondents

Judgment:

(On the papers)

4 November 2013 at 10.00 am

JUDGMENT OF FRENCH J

AThe application for an extension of time is granted.  The time for filing the case on appeal and applying for a fixture is extended until 20 working days after the appellant’s application for leave to appeal to the Supreme Court is determined.

BThere will be no order as to costs.

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REASONS

1. Allied Concrete Ltd has filed an appeal against a decision of Associate Judge Abbott made in the High Court.[1]  The grounds of the appeal involve legal issues that are identical to those already determined by this Court in Farrell v Fences & Kerbs Ltd.[2]  In light of Farrell, Allied Concrete considers that it has no prospects of success in this Court.  It has accordingly filed an application in the Supreme Court seeking an order under s 14 of the Supreme Court Act 2003 that the proposed appeal be transferred directly to the Supreme Court.

   [1]Meltzer v Allied Concrete Ltd [2013] NZHC 977.

   [2]Farrell v Fences & Kerbs Ltd [2013] NZCA 91, [2013] 3 NZLR 82.

2. The application has yet to be heard in the Supreme Court.  In the meantime, the three month time limit under r 43 of the Court of Appeal (Civil) Rules 2005 for filing a case on appeal and seeking a fixture has expired.  This has necessitated Allied Concrete seeking an extension of time under r 43(3).

3. The respondent consents to the application for an extension of time.

4. I am satisfied that the matter may be dealt with on the papers and that in the circumstances the application should be granted.  The time for filing the case on appeal and applying for a fixture is accordingly extended by consent until 20 working days after Allied Concrete’s application for leave to appeal to the Supreme Court is determined.

5. There will be no order as to costs.

Solicitors:
Wynn Williams Lawyers, Christchurch for Appellant
Hucker Associates, Auckland for Respondents