Avonside Holdings Limited v Southern Response Earthquake Services Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

CA520/2013
[2014] NZCA 225

BETWEEN	AVONSIDE HOLDINGS LIMITED Applicant
AND	SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED Respondent

Court:

Ellen France, Harrison and White JJ

Counsel:

N Campbell QC for Applicant
S E Waggott for Respondent

Judgment:

(On the papers)

4 June 2014 at 3 pm

JUDGMENT OF THE COURT

A The application for an extension of time is granted.
B The notice of abandonment issued by the Deputy Registrar on 11 November 2013 is set aside.
CThe time for the applicant to apply for a fixture is extended to 20 June 2014.

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REASONS OF THE COURT

(Given by Harrison J)

On 5 August 2013 the applicant, Avonside Holdings Ltd, filed an appeal against a judgment delivered by MacKenzie J in the High Court on 11 July 2013.[1] The three month period for applying for a hearing date and filing the case on appeal expired on 5 November 2013 without Avonside taking either of those steps. On 11 November 2013 this Court gave notice of abandonment of the appeal.[2]
[1]Avonside Holdings Ltd v Southern Response Earthquake Services Ltd [2013] NZHC 1433.
[2]Pursuant to rule 43 of the Court of Appeal (Civil) Rules 2005.
On 20 November 2013 Avonside applied for an extension of time to file its case on appeal and apply for a fixture. By reason of an administrative oversight in the Registry, the application was not drawn to the Court’s attention until recently. The respondent, Southern Response Earthquake Services Ltd, does not consent to or oppose the application.
Avonside in fact filed its case on appeal on 28 November 2013, and Southern takes no objection to its contents.
In support of the application, Avonside relies on the facts that the length of the delay was only 15 days, there was no prejudice to Southern, the case on appeal has now been filed and it has always intended to pursue the appeal.
In these circumstances, in particular that the period of delay was short and the case on appeal has now been filed, we grant Avonside’s application for an extension of time. The notice of abandonment issued by the Deputy Registrar on 11 November 2013 is set aside. The case on appeal is treated as having been filed in accordance with the rules. The time for Avonside to apply for a fixture is extended to 20 June 2014.

Solicitors:
Grant Shand, Christchurch for Applicant
Wynn Williams, Christchurch for Respondent

CaseChat Overview and Summary

Avonside Holdings Limited, the appellant, filed an appeal against a judgment delivered by MacKenzie J in the High Court on 11 July 2013. Southern Response Earthquake Services Limited, the respondent, was the subject of the original judgment. The Court of Appeal of New Zealand, comprising Ellen France, Harrison, and White JJ, considered Avonside's application for an extension of time to file its case on appeal and apply for a fixture. The appeal was filed on 5 August 2013, but the three-month period for filing the case on appeal and applying for a hearing date expired on 5 November 2013 without Avonside taking any steps. Consequently, the Court issued a notice of abandonment of the appeal on 11 November 2013.

The legal issues before the Court of Appeal were whether to grant Avonside's application for an extension of time to file its case on appeal and apply for a fixture, and whether to set aside the notice of abandonment issued by the Deputy Registrar. Avonside applied for an extension of time on 20 November 2013, citing an administrative oversight in the Registry as the reason for the delay. Southern did not consent to or oppose the application and took no objection to the contents of the case on appeal filed by Avonside on 28 November 2013. Avonside argued that the delay was only 15 days, there was no prejudice to Southern, the case on appeal had been filed, and Avonside had always intended to pursue the appeal.

The Court of Appeal granted Avonside's application for an extension of time, set aside the notice of abandonment issued by the Deputy Registrar, and extended the time for Avonside to apply for a fixture to 20 June 2014. The Court considered the short period of delay, the absence of prejudice to Southern, and the fact that Avonside had filed its case on appeal and intended to pursue the appeal. The Court of Appeal concluded that these circumstances justified granting the extension of time. The case on appeal was treated as having been filed in accordance with the rules.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established