Hook v Gulf Harbour Town Centre Limited (in liquidation)

[2008] NZCA 142

IN THE COURT OF APPEAL OF NEW ZEALAND

CA124/07
[2008] NZCA 142

BETWEENCHRISTOPHER RUSSELL HOOK

Appellant

ANDGULF HARBOUR TOWN CENTRE LIMITED (IN LIQUIDATION)

First Respondent

ANDGULF HARBOUR DEVELOPMENT LIMITED (IN LIQUIDATION)

Second Respondent

ANDGULF HARBOUR MANAGEMENT LIMITED (IN LIQUIDATION)

Third Respondent

ANDGULF HARBOUR HOLDINGS LIMITED (IN LIQUIDATION)

Fourth Respondent

ANDTAN KOK SENG

Sixth Respondent

ANDGOH CHENG LIANG

Seventh Respondent

ANDAUCKLAND REGIONAL HOLDINGS

Eighth Respondent

ANDAMERICA'S CUP VILLAGE LIMITED

Ninth Respondent

Hearing:19 May 2008

Court:William Young P, Glazebrook and Baragwanath JJ

Counsel:S R G Judd for Appellant

R B Stewart QC and L O'Gorman for Eighth and Ninth Respondents

Judgment:4 June 2008 at 11am

JUDGMENT OF THE COURT

AThe application for extension of time for providing security of costs is allowed and time is extended to include the date on which security was provided.

BWe make no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

The application

[1]       The High Court gave summary judgment in favour of the respondent defendants on the ground that the appellant plaintiff’s claim under s 27 of the Commerce Act 1986 was statute barred.  The notice on appeal and case on appeal had been filed within time and the filing fee and setting down fee were duly paid.  But as a result of a misunderstanding by the appellant’s solicitor security for costs was not provided within time.  So Mr Hook applies for extension of time.

[2]       The mistake was rectified as soon as it came to the attention of the appellant, Mr Hook.  There can be no basis for declining extension of time unless the appeal is so clearly without merit so that there is no purpose in giving leave in order to hear full argument: Airwork (NZ) Ltd v Vertical Flight Management [1999] 1 NZLR 29 (CA). That is the sole issue requiring determination.

[3]       The claim is based on s 27 of the Commerce Act 1986 and relates to events which occurred between 1997 - 1999.  It was commenced on 14 December 2005 and accordingly is statute barred unless the “matter giving rise to the [alleged] contravention” was neither discovered nor reasonably discoverable prior to 14 December 2002, see s 82.  Undoubtedly part of “the matter giving rise to the contravention” (that is, the conduct alleged to infringe s 27(1)) was known to Mr Hook prior to 14 December 2002 but the primary evidence upon which Mr Hook now relies to prove the contravention was obtained in the course of discovery in the 2002 proceedings.  

[4]       It would be premature at this point without full argument to assess with precision the extent and the significance of Mr Hook’s pre-14 December 2002 knowledge and whether he could be expected to have secured significantly further information otherwise than by the discovery procedures which he later undertook.  At this stage of the case we are not satisfied that the appellant’s claim is inevitably statute barred in all respects.

Decision

[5]       The application for extension of time for providing security of costs is allowed and time is extended to include the date on which security was provided.

[6]       Mr Hook has secured a dispensation.  But he has succeeded following argument.  We make no order as to costs.

Solicitors:
Phillips Solicitors, Auckland for Appellant
Lee Salmon Long, Auckland for First - Fourth Respondents
Forrest Harrison, Auckland for Sixth and Seventh Respondents
Buddle Findlay, Auckland for Eighth and Ninth Respondents