EA v Rennie Cox Lawyers - [2022] NZSC 37

NOTE: LOWER COURT ORDERS PROHIBITING PUBLICATION OF NAMES AND IDENTIFYING PARTICULARS OF THE APPLICANT AND THE BARRISTER ENGAGED BY RENNIE COX LAWYERS REMAIN IN FORCE. SEE [2019] NZHC 3191.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 9/2022
[2022] NZSC 37

BETWEEN	EA Applicant
AND	RENNIE COX LAWYERS Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	R J Hollyman QC and A J Steel for Applicant S P Bryers for Respondent
Judgment:	4 April 2022

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicant must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

Introduction

The respondent filed a proceeding for recovery of a barrister’s fees of $95,738.51 plus interest in the District Court in March 2012. The applicant has not yet filed a response to the claim. Instead, the matter has become mired in ongoing procedural disputes.
The latest step in these procedural skirmishes is the Court of Appeal judgment from which the applicant seeks leave to appeal.[1] In that judgment the Court allowed an appeal by the respondent and reinstated timetable directions made in the District Court, with some variations.[2]

Background

[1]Rennie Cox Lawyers v EA [2021] NZCA 648 (Gilbert, Collins and Goddard JJ) [CA judgment].

[2]Rennie Cox Lawyers v EA [2018] NZDC 21916 (Judge G M Harrison) [DC judgment].

The background is set out in full in the judgment of the Court of Appeal.[3] We need only note some key steps. The first of these steps is that in applying without notice for judgment by default in June 2015, counsel then instructed to act for the barrister also applied for the necessary extension of time to make the application. At that point, absent an extension of time, in order to pursue the claim it would have been necessary to start it afresh. An extension of time was granted and judgment entered by default in the District Court on 21 August 2015.
[3]CA judgment, above n 1, at [4]–[23]; and see the chronology annexed to Rennie Cox Lawyers v EA [2020] NZCA 348.
Relevantly, next, on 5 March 2018 the Court of Appeal allowed an appeal by the applicant against the entry of judgment by default against the applicant.[4] The Court found that the default judgment had been irregularly obtained in the District Court and should not have been entered on the Court record. The respondent then promptly sought directions in the District Court for the future conduct of the proceedings. Judge Harrison granted the respondent’s application for an extension of time for the applicant to file a response to the claim and other timetable directions. In his judgment of 1 November 2018, the Judge concluded that it was appropriate in the interests of justice to extend time pursuant to r 1.18.1 of the District Court Rules 2009.[5] The applicant’s appeal against those timetabling directions succeeded in the High Court.[6] And, as we have noted, the Court of Appeal in 2021…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZSC 37
Decision Date: 4 April 2022

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an application for leave to appeal a decision of the Court of Appeal. The applicant, EA, was seeking to appeal a decision reinstating timetable directions made by the District Court in a proceeding for the recovery of a barrister's fees. The respondent, Rennie Cox Lawyers, opposed the appeal on the basis that it did not raise any issues of general or public importance. The legal issues before the Supreme Court were whether the Court of Appeal could recall sealed judgments on appeal in a different appeal and whether the District Court had inherent powers to extend time after the statutory limitation period had expired. The Court found that the proposed appeal did not raise any questions of general or public importance and that there was no appearance of error in the Court of Appeal's assessment of the facts. The Court dismissed the application for leave to appeal and ordered the applicant to pay the respondent's costs of $2,500.

Orders