EA v Rennie Cox Lawyers - [2019] NZHC 3191

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPELLANT AND ANOTHER PERSON.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2580

[2019] NZHC 3191

BETWEEN
EA

Appellant

AND

RENNIE COX LAWYERS

Respondent

Hearing:
6 August 2019 with further submissions on 6, 9 and 19 September

2019

Appearances:

R J Hollyman QC for the Appellant S P Bryers for the Respondent

Judgment:

5 December 2019

Reissued:

6 December 2019

JUDGMENT OF PALMER J

[reissued with a redaction]

This judgment was delivered by me on Thursday 5 December 2019 at 4.30pm.
Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

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

EA v RENNIE COX LAWYERS [2019] NZHC 3191 [5 December 2019]

Summary

[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.

What happened?

A dispute over fees

[3] Rennie Cox, a firm of solicitors, acted for Ms EA in a legal proceeding. From 2009 to 2011, Rennie Cox instructed Mr M, a barrister. Ms EA’s name was suppressed by Judge Gibson in the North Shore District Court on 29 April 2016. This was done so as not to undermine suppression orders, made under the relevant legislation, in…

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: [2019] NZHC 3191
Decision Date: 5 December 2019

CaseChat Overview and Summary

This case concerns a dispute between Ms EA and Rennie Cox Lawyers over legal fees. The matter was initially brought to the District Court in 2012, but proceedings were stayed due to a complaint made by Ms EA to the New Zealand Law Society. The complaint was later resolved in 2015, leading to Rennie Cox applying for a retrospective extension of time to enter judgment by default. The Court of Appeal overturned this decision in 2018, holding that the proceeding had been discontinued and could not be revived. Rennie Cox subsequently applied for further timetabling directions in the District Court, which were granted. Ms EA appealed these decisions.

The central legal issue in this case was whether the District Court had the jurisdiction to grant a second extension of time to Rennie Cox, allowing the proceeding to continue despite the limitation period having expired. The Court of Appeal had previously held that the proceeding had been automatically discontinued before Rennie Cox applied for a retrospective extension of time. However, the Court of Appeal did not explicitly rule out the possibility of a further application to revive the discontinued proceeding.

The High Court found that the District Court's decision to grant a second extension of time was plainly wrong. The Court held that the limitation period had expired before the second application was made, and that the interests of justice did not require granting the extension. The Court emphasised that the strict deadlines in the District Court Rules and the Limitation Act 2010 were intended to encourage parties to take action in legal proceedings or risk starting all over again. The Court found that Rennie Cox had already blown their chance to have the deadline extended in 2015, and that the interests of justice did not require them to get another one.

As a result of the Court's decision, the extension of time and timetabling orders were quashed, and the costs award in favour of Rennie Cox was also quashed. Costs and reasonable disbursements were awarded to Ms EA in respect of the application in the District Court and the appeal in the High Court.

Orders