EA v Rennie Cox Lawyers - [2020] NZHC 958

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2580

[2020] NZHC 958

BETWEEN
EA

Appellant

AND

RENNIE COX LAWYERS

Respondent

Hearing: 4 March 2020

Appearances:

R J Hollyman QC for the appellant S P Bryers for the respondent

Judgment:

12 May 2020

JUDGMENT NO 2 OF PALMER J

This judgment was delivered by me on Tuesday 12 May 2020 at 11.00 am.
Pursuant to Rule 11.5 of the High Court Rules

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
R J Hollyman QC, Auckland
S P Bryers, Barrister, Auckland Rennie Cox Lawyers, Auckland

EA v RENNIE COX LAWYERS NO 2 [2020] NZHC 958 [12 May 2020]

Judgment and application

[1]On 5 December 2019, I gave judgment in favour of Ms EA in this proceeding.

In summary, I said:1

[1] Ms EA and Rennie Cox Lawyers had a dispute about legal fees. In March 2012 Rennie Cox filed proceedings in the District Court. They were automatically stayed when Ms EA complained to the New Zealand Law Society about the amount. The complaint was resolved in February 2015. In June 2015 Rennie Cox successfully applied to Judge G M Harrison of the District Court, without notice, for a retrospective extension of time under the District Court Rules 2009 (the Rules) to enter judgment by default. In March 2018, the Court of Appeal held Rennie Cox had inexcusably misled Judge Harrison in doing so and overturned the judgment. Later that month Rennie Cox applied to the District Court for further timetabling directions in the proceeding. Ms EA opposed that on the basis the proceeding was deemed to have been discontinued under the Rules. On 1 November 2018, Judge Harrison, in the North Shore District Court, granted a further extension of time to permit the proceeding to be heard, made timetabling directions and awarded costs to Rennie Cox. Ms EA appeals those decisions.

[2] The proceeding was deemed to have been discontinued under r 2.39 of the Rules, the purpose of which was to put pressure on parties to take action in legal proceedings or risk starting all over again. The limitation period to start a new such proceeding had expired by the time Judge Harrison considered the second extension. I consider the decision to extend the deadline retrospectively was inconsistent with the purpose of the Rules and the purpose of the Limitation Act 2010 and was plainly wrong. Rennie Cox blew their chance to have the deadline extended, in 2015. The interests of justice do not require they get another one. I uphold the appeal.

[2] Now, Rennie Cox applies for leave to appeal my decision to the Court of Appeal. Section 67 of the Judicature Act 1908 governs this application, since it concerns an application for leave to appeal from decisions given in proceedings commenced before 1 March 2017.2 But the test is the same as if it were assessed under s 60 of the Senior Courts Act 2016. In determining whether to grant leave to…

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: [2020] NZHC 958
Decision Date: 12 May 2020

CaseChat Overview and Summary

Rennie Cox Lawyers applied for leave to appeal from the High Court's decision to the Court of Appeal, seeking to challenge the judgment in favour of EA, who had disputed the legal fees charged by Rennie Cox Lawyers. The Court of Appeal had previously overturned a District Court decision granting Rennie Cox Lawyers a retrospective extension of time, finding it had misled the court. The High Court found that the proceeding was deemed to have been discontinued under the District Court Rules 2009, and the limitation period to start a new such proceeding had expired by the time the District Court considered the second extension. The High Court dismissed Rennie Cox Lawyers' application for leave to appeal, finding that the proposed appeal did not raise a question capable of serious argument, in a case involving public or private interest of sufficient importance to outweigh the cost and delay of the appeal.

The court considered the legal issues raised by Rennie Cox Lawyers, including the effect of the stay of proceedings on the running of time for the purpose of the limitation period, whether EA could claim costs in one context while denying liability for them in another, and whether the proceeding was deemed to have been discontinued and/or whether it was in the interests of justice to permit an extension of time. The court found that the proposed appeal did not meet the threshold for leave to appeal and would not cure Rennie Cox Lawyers' application. The court dismissed the application for leave to appeal and awarded costs for the application to EA on a 1B basis.

Rennie Cox Lawyers' application for leave to appeal from the High Court's decision was dismissed, and costs for the application were awarded to EA on a 1B basis. The court found that the proposed appeal did not raise a question capable of serious argument, in a case involving public or private interest of sufficient importance to outweigh the cost and delay of the appeal. The court emphasised the importance of enforcing the interests of finality on this litigation, rather than extending it yet again.

Orders