Harrington v Wilding - [2019] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA412/2018
[2019] NZCA 283

BETWEEN	JONATHAN OWEN HARRINGTON Appellant
AND	TIMOTHY WILDING Respondent

Counsel:	I G Hunt and C Light for Appellant P J Dale QC for Respondent
Judgment: (On the papers)	4 July 2019 at 3.00 pm

JUDGMENT OF BROWN J
(Costs)

A The respondent’s application for costs is declined.

BThe respondent must pay the appellant $750.00 for costs.

____________________________________________________________________

REASONS

Introduction

The respondent (Mr Wilding) applies for costs in relation to the application by the appellant (Mr Harrington) for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules). The application was initially opposed but subsequently consented to.

Background

As Davidson J observed in the judgment under appeal:[1]
The proceedings have a long and complex history and the main hearing occupied 32 days in two bands in 2016. It was preceded by related proceedings and judgments, then a residual but still substantive phase through to March 2017.
[1]Wilding v Te Mania Livestock Ltd [2018] NZHC 1506 at [2].
The judgment under appeal is a costs judgment of 223 paragraphs in length consequent upon the delivery of an Interim Judgment on 5 April 2017[2] and Reasons for Interim Judgment on 12 April 2017.[3] Davidson J awarded costs against Mr Wilding in favour of Mr Harrington in the sum of $103,500 costs and $27,500 disbursements. The Judge also ordered Mr Wilding to pay to the second, fourth and fifth defendants $201,000 costs and $30,000 disbursements.
[2]Wilding v Te Mania Livestock Ltd [2017] NZHC 649.
[3]Wilding v Te Mania Livestock Ltd [2017] NZHC 717, [2018] NZCCLR 3.
On 20 July 2018 Mr Harrington filed a notice of appeal challenging the adequacy of that award in his favour. On 31 July 2018 Mr Wilding filed a notice of cross‑appeal in which he sought an order setting aside the costs order in Mr Harrington’s favour, an award of costs to Mr Wilding and a direction that Mr Harrington pay the costs awarded in favour of the second, fourth and fifth defendants in the sum of $201,000 plus disbursements of $30,000.
Mr Harrington failed to apply for the allocation of a hearing date and to file the case on appeal within the three month period required by r 43(1) of the Rules. His appeal was subsequently deemed abandoned on 24 October 2018. On 14 November 2018 he filed an application for an extension of time under r 43(2) including in the grounds that the failure was because his solicitors failed to prepare the voluminous case on appeal in sufficient time, that the appeal had good prospects of success and that no specific prejudice to Mr Wilding had arisen as a consequence of the delay. The application was supported by affidavits of Mr Harrington and of an associate in the firm of solicitors representing him.
On 15 November 2018 Mr Wilding filed a notice of opposition to the application…

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] NZCA 283
Decision Date: 4 July 2019 at 3.00 pm

CaseChat Overview and Summary

Harrington v Wilding is a case in which the Court of Appeal of New Zealand considered an application for costs brought by Timothy Wilding against Jonathan Owen Harrington. The case arose from a lengthy and complex proceeding that was initially opposed but subsequently consented to by the parties. The appeal concerned a costs judgment delivered by Davidson J in 2017, which was later challenged by Harrington on the basis that the award of costs was inadequate. Wilding applied for costs in relation to Harrington's application for an extension of time under rule 43 of the Court of Appeal (Civil) Rules 2005.

The central issue before the Court of Appeal was whether Wilding was entitled to costs for opposing Harrington's application for an extension of time, which was ultimately consented to by the parties. Wilding argued that his opposition was justified because the application was frivolous and Harrington's solicitors had made a conscious decision to allow the appeal to lapse. Harrington contended that the opposition was baseless and that Wilding had no justification for opposing the application. Wilding also sought to recover costs for the preparation of his affidavit and for wasted costs incurred after Harrington's appeal was deemed abandoned.

The Court of Appeal held that Wilding was not entitled to costs for opposing the application for an extension of time, as the application should have been granted in light of the error made by Harrington's solicitors. The Court noted that the opposition was misconceived and that Wilding had ultimately consented to the extension, resulting in significant savings of time and resources for both parties. The Court also rejected Wilding's claim for wasted costs, holding that the application for costs was premature and that the work done did not need to be wasted. In light of these findings, the Court awarded Harrington costs in the sum of $750.

The Court of Appeal declined Wilding's application for costs and ordered Wilding to pay Harrington $750 for costs. This decision highlights the importance of carefully considering the merits of an application for an extension of time, and the consequences that may follow if such an application is opposed without justification.

Orders