Buchanan Construction Limited v Watson

[2019] NZHC 624

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1457

[2019] NZHC 624

UNDER

Rule 20.4 of the High Court Rules 2016

BETWEEN

BUCHANAN CONSTRUCTION LIMITED

Appellant

AND

CHRISTINE WATSON

Respondent

Hearing:	27 March 2019
Appearances:	C Orton for the Appellant Respondent on own behalf
Judgment:	28 March 2019

JUDGMENT OF GORDON J

This judgment was delivered by me

on 28 March 2019 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Corban Revell, Auckland Copy to:     The Respondent

BUCHANAN CONSTRUCTION LTD v WATSON [2019] NZHC 624 [28 March 2019]

[1]    This is an application by the appellant, Buchanan Construction Ltd (BCL) under r 20.4(3) of the High Court Rules 2016 for special leave extending the time for bringing an appeal.

[2]The application is opposed by the respondent, Christine Watson.

Background

[3]    BCL and Ms Watson entered into a construction contract in September 2015 for building work at Ms Watson’s home. A number of invoices were issued over the period of the contract. Five of the invoices were not paid or only paid in part.

[4]    BCL issued a payment claim for the sum of $16,438.47. No payment schedule was provided in response by Ms Wilson. In the District Court, BCL sought judgment for that amount together with interest and costs.

[5]    Ms Watson’s position was that the payment claim did not comply with the requirements of the Construction Contracts Act 2002 (the Act) and further that the payment claim was not sufficiently served for the purposes of s 80 of the Act.

[6]    The proceeding came before Judge Sinclair in the District Court at Auckland on 22 February 2018 and a reserved decision was given on 13 March 2018 dismissing BCL’s claim.

[7]The appeal was required to be filed by 12 April 2018.1

[8]    The notice of appeal, dated 6 July 2018, and the application for special leave seeking an extension of time, dated 10 July 2019, were both filed on 11 July 2018.

1      Rule 20.4(2)(b) of the High Court Rules 2016 requires the appeal to be brought within 20 working days after the decision appealed against is given, if the statute conferring the right of appeal does not stipulate a time limit. This provision applies as s 124 of the District Court Act 2016 does not specify a time period within which the appeal must be brought.

The law

[9]    An extension of time is within the discretion of the Court. The considerations a Court will take into account are well-established:2

[10]   In My Noodle v Queenstown-Lakes District Council the Court of Appeal stated as follows:3

[19] A number of factors are relevant to a decision as to whether time to appeal should be extended, including the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay: New Plymouth District Council v Waitara Leaseholders Association Incorporate [2007] NZCA 80 at [22]. The overall test, however, is whether granting an extension would “meet the overall interests of justice”: Havanaco Ltd v Stewart (2005) 17 PRNZ 622 at [5] (CA).

[11]   In Whaanga v Smith, the Court of Appeal referred to the considerations as follows:4

(a)The length of the delay in seeking leave to appeal and the reasons for it;

(b)The parties’ conduct;

(c)The extent of prejudice caused by the delay;

(d)The prospective merits of the appeal; and

(e)Whether the appeal raises any issue of public importance.

Delay and reasons

[12]   The delay from 13 March to 11 July 2018 is 82 working days, just under three months. There are two reasons for the delay as explained in an affidavit of Hine-Joy

2      My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224; and Whaanga v Smith

[2013] NZCA 606.

3 At [19].

4      Whaanga v Smith, above n 2, at [6].

Weiland, a solicitor employed by the  appellant’s  solicitors,  sworn  9  July  2018. Ms Weiland appeared for BCL in the District Court.

[13]   First, Ms Weiland says that she did not receive a copy of the judgment of the District Court Judge until 23 April 2018. There is an email dated 20 April 2018 from Ms Weiland to the civil registry of the Auckland District Court, which is attached to Mr Buchanan’s affidavit sworn in support of the application. The email includes the following:

I advise that despite requests I am still waiting to receive the judgment dated 13 March 2018 as referred to in the attached minutes. My client has not been afforded the opportunity to know the outcome of the hearing and take any further steps based on its outcome.

[14]   The email chain includes a response from the District Court dated 23 April 2018 attaching the decision.

[15]   Ms Watson deposes in her affidavit in support of her opposition that the District Court Judge’s decision was sent by email correspondence to the email address provided by BCL’s lawyer and to her on 13 March 2018. She annexes a copy of that email to her submissions. Mr Orton, appearing for BCL, advises the Court from the bar, that is the email address for a solicitor who formerly worked for his firm. It is not clear when that solicitor left.  However, he did not appear in the hearing before  Judge Sinclair.

[16]   In the absence of cross-examination, although it appears the decision was emailed to someone at Corban Revell (who may or may not have still been employed at the firm at the time), I am satisfied on the evidence that Ms Weiland did not receive the decision of the District Court Judge until 23 April 2018. 20 working days after the judgment was in fact received was 22 May 2018.

[17]   The second reason, Ms Weiland says, arises out of her incorrect advice to the Director of BCL on the amount of the filing fee. She says that on 23 April 2018, when she received the judgment from the District Court, she spoke to Mr Buchanan, the Director of BCL, over the phone. She said they discussed the possibility of appealing the decision and the need to file out of time, due to the delay in receiving the judgment.

She said that she advised Mr Buchanan that she would review the decision in detail and have further discussions about his options at a later date. Ms Weiland says that on 2 May 2018, she and Mr Buchanan further discussed the judgment. He was interested in bringing an appeal, but he also indicated to Ms Weiland that the company was financially impecunious.

[18]   Ms Weiland says her initial view was that the total filing fee was $1,850, made up of a filing fee of $1,350 for the notice of appeal and $500 for the application for special leave to extend the time for filing the appeal. She told Mr Buchanan that the total filing fee would be $1,850.

[19]   In fact, the cost for filing a notice of appeal is $540 and the cost for filing an application for special leave is $200, giving a total of $740.

[20]   Ms Watson says she raised the costs of filing an appeal with Mr Buchanan again on 25 May, and by letter dated 28 May 2018. She says that Mr Buchanan’s position, based on the advice she gave him that the filing fee was $1,850, was that he would not be in a position to pay the filing fee until about 22 June 2018.

[21]   In his affidavit, Mr Buchanan also refers to his discussions with Ms Weiland about the filing fee and says that the company did not have the funds at that time to pay the indicated filing fee.

[22]   BCL paid the $1,850 to the Corban Revell trust account on 26 June 2018. It was paid four days after a sum of just under $16,000 was paid into BCL’S account. There is no evidence explaining the delay between 26 June 2018 and 11 July 2018 when the application for special leave was filed. Ms Weiland does say in her affidavit that she did not pick up the error in her advice to Mr Buchanan as to the amount of the filing fee until 9 July 2018, after the documents had been prepared and were ready for filing.

[23]   A delay of 82 working days is lengthy. However, having regard to the fact that the appellant did not receive the judgment until 23 April 2018, I consider it is fair to

measure the length of the delay from that date. That is a period of 55 working days, just short of two months.

[24]   As to the second cause of the delay, I accept this was a genuine mistake by Ms Weiland.  There  is  a  significant  difference  between  $1,850  as  advised  to  Mr Buchanan and the actual fee of $740.

[25]   In My Noodle Ltd v Queenstown-Lakes District Council, the Court of Appeal said:5

[20] We  accept that the cause of the delay in this case was a genuine  mistake on the part of the applicants’ legal advisers. Once the error was discovered, their counsel immediately sought the respondents’ consent to an extension of time for appealing. This Court has made it clear that it is normally sympathetic to an extension of time in such circumstances, particularly where counsel has acted expeditiously to remedy the oversight after it has been discovered: …

(citations omitted).

[26]   In this case, counsel did not discover the error in her advice until after the documents were assembled and ready for filing. However, there is an unexplained period of delay from the time BCL paid the filing fee to the firm’s trust account on 26 June 2018 and the date of filing, namely 11 July 2018.

Conduct of the parties

[27]There is no evidence of any disqualifying conduct on the part of BCL.

Prejudice

[28]   In her notice of opposition, Ms Watson says that, as residential homeowner she is in the position where she is without the means to pay for legal counsel. She claims that allowing the application for special leave outside the prescribed timeframe would unnecessarily prejudice her. However, I do not consider there is any prejudice arising out of the delay. If there is such prejudice, as Ms Watson claims, it would arise even if the appeal had been filed within time.

5      My Noodle Ltd v Queenstown-Lakes District Council, above n 2, at [20].

[29]   Ms Watson also says that her health is suffering with anxiety attacks and she has been unable to sleep. She says that her mother has passed away and she has not had the peace of mind to grieve properly. I accept that the delay will have impacted on Ms Watson in these respects. However, stress on parties is not an uncommon consequence of litigation.

[30]   Finally, on the question of prejudice, I note that the judgment being appealed does not provide for any amount to be payable by BCL to Ms Watson. Accordingly, any delay caused by the late filing will not delay the receipt of any monies by       Ms Watson.

[31]   As to the final two factors, it cannot be said that the appeal raises an issue of public importance. In this case, I do not address the merits of the appeal.6 BCL could have appealed to this Court as of right but for the delay in the receipt of the District Court judgment by the solicitor acting for BCL and the solicitor’s mistake in advising BCL of the filing fee, both of which are explained. There is a short unexplained delay after the solicitors received the filing fee from BCL and before the application was filed. However, applying the overall test, whether granting an extension would “meet the overall interests of justice”,7 I grant special leave as sought by BCL to extend the time for filing an appeal.

Gordon J

6      Following the approach in Whaanga v Smith, above n 2.

7      Havanaco Ltd v Stewart (2005) 17 PRNZ 622 (CA) at [5].