Birkenfeld v Yachting New Zealand Incorporated

The Court of Appeal of New Zealand heard an application by Kimberly Birkenfeld to appeal out of time a decision on costs made by Keane J. The dispute arose from a collision between a boat owned by Yachting New Zealand Incorporated and a windsurfer ridden by Ms Birkenfeld. Ms Birkenfeld had brought a claim against Yachting New Zealand, which sought a decree of limitation of liability under s 85 of the Maritime Transport Act 1994. Keane J made such a decree and later awarded costs to Yachting New Zealand. Ms Birkenfeld's application for special leave to appeal out of time was dismissed, and she was ordered to pay costs.

The legal issues before the Court of Appeal were whether the appeal had merit, whether the delay in bringing the appeal was through no fault of Ms Birkenfeld, and whether there was any prejudice to Yachting New Zealand in granting special leave. The Court of Appeal found that the appeal was hopeless, and the delay in bringing the appeal was not through no fault of Ms Birkenfeld. However, the Court found that there was some prejudice to Yachting New Zealand in granting special leave. The Court also found that costs in this Court should follow the event.