Allied Concrete Limited v Meltzer

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

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.
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).
The respondent consents to the application for an extension of time.
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.
There will be no order as to costs.

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

CaseChat Overview and Summary

Allied Concrete Limited has appealed a decision made by Associate Judge Abbott in the High Court, with Jeffrey Philip Meltzer and Lloyd James Hayward, as liquidators of Window Holdings Limited (in liquidation), responding to the appeal. The appeal hinges on legal issues that mirror those previously resolved by the Court of Appeal in the case of Farrell v Fences & Kerbs Ltd. Given the precedent set in Farrell, Allied Concrete believes it has no chance of success in the Court of Appeal and has consequently applied to the Supreme Court for an order under section 14 of the Supreme Court Act 2003. This order would permit the transfer of the proposed appeal directly to the Supreme Court. As the Supreme Court has yet to rule on this application, Allied Concrete is now seeking an extension of time to file its case on appeal and apply for a fixture, as the three-month limit under rule 43 of the Court of Appeal (Civil) Rules 2005 has lapsed.

The court was tasked with determining whether the application for an extension of time should be granted. This decision was made in light of the ongoing application to the Supreme Court and the consent of the respondents to the extension. The Court of Appeal was satisfied that the matter could be resolved on the papers and, considering the circumstances, decided to grant the application for an extension of time. The time for filing the case on appeal and applying for a fixture has thus been extended until 20 working days after the Supreme Court determines Allied Concrete's application for leave to appeal. No order regarding costs was made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established