Glaister v Amalgamated Dairies Ltd

In the New Zealand Court of Appeal, the appellants David John Glaister, Lomond Maurice Seel, and Robert Narev sought to prevent the respondents, Amalgamated Dairies Limited and Challenge Investment Company Limited, from bringing a cross-appeal out of time. The primary dispute between the parties centred around the value of certain shares and the subsequent costs awarded in a legal proceeding. The respondents had failed to file a notice of cross-appeal within the 28-day timeframe stipulated by Rule 8(2) of the Court of Appeal (Civil) Rules 1997, due to an oversight by their solicitors. The respondents sought leave to file the cross-appeal beyond the deadline, arguing that they had received instructions to do so within the time limit.

The court was tasked with determining whether it should grant leave under Rule 8(2) for the late filing of a cross-appeal, and if the proposed cross-appeal had any prospect of success. The court noted that while leave for a late cross-appeal is more readily granted than leave to initiate an appeal out of time, it would not grant such leave if the cross-appeal had no prospect of success. The proposed cross-appeal pertained to a portion of the costs judgment, specifically the refusal to reduce costs due to the failure of the appellants to agree to mediation. The respondents argued that mediation might have led to a settlement, resulting in lower costs and saved court time.

The court dismissed the application for leave to bring the cross-appeal out of time. It reasoned that the proposed cross-appeal had no prospect of success because the primary claim for the value of the shares had been entirely successful in favour of the appellants. Additionally, the court found that the argument for mediation had no merit as the appellants' decision not to mediate had been vindicated. Consequently, the application was dismissed, and costs in the sum of $1,000 were awarded to the appellants.