Ellis v Red Eagle Corporation Limited

[2008] NZCA 473

IN THE COURT OF APPEAL OF NEW ZEALAND

CA554/2008
[2008] NZCA 473

BETWEENRICHARD JOHN OTLEY ELLIS

Applicant

ANDRED EAGLE CORPORATION LIMITED

Respondent

Hearing:4 November 2008

Court:Glazebrook, Robertson and Baragwanath JJ

Counsel:P V Shackleton for Applicant

L Herzog for Respondent

Judgment:7 November 2008 at 12.00 pm

JUDGMENT OF THE COURT

A        The application for an extension of time to appeal is granted.

BThe Notice of Appeal should be filed and served on or before 5pm on Wednesday 12 November 2008.

C        Costs are reserved.

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REASONS OF THE COURT

(Given by Glazebrook J)

[1]       Mr Ellis applies for an extension of time to appeal against the judgment of Dobson J in Red Eagle Corporation Ltd v Ellis HC Auckland CIV2008-404-187 30 July 2008.

[2]       It is accepted by Red Eagle that the failure to file the notice of appeal on time was through oversight, that its counsel was notified straight away of this oversight and that it has suffered no prejudice from the delay.  The sole ground of opposition was the alleged lack of merit of the appeal.

[3]       We do not consider the appeal to be one where the lack of merit is so clear that it would justify not granting the application in the circumstances of this case.  It would be inappropriate to comment further.

[4]       The application is granted and costs are reserved.  The Notice of Appeal should be filed and served on or before 5pm on Wednesday 12 November 2008.

Solicitors:
Martelli McKegg Wells & Cormack, Auckland for Applicant
Nigel Faigan, Auckland for Respondent