Jindal v Jarden Securities Limited (formerly Om Financial Limited)
[2022] NZCA 253
•20 June 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA181/2022 [2022] NZCA 253 |
| BETWEEN | GAUTAM JINDAL |
| AND | JARDEN SECURITIES LIMITED (FORMERLY OM FINANCIAL LIMITED) |
| Counsel: | Appellant in Person |
Judgment: | 20 June 2022 at 10.30 am |
JUDGMENT OF BROWN J
AThe application for an extension of time to appeal is granted in respect of the High Court minute dated 1 March 2022. The effective date of filing the notice of appeal is the date of this judgment.
BThe application for an extension of time is declined in respect of the High Court minute dated 3 March 2022.
CThere is no order for costs.
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REASONS
Introduction
In a minute dated 1 March 2022, Venning J made an order that the appellant, Mr Jindal, was to pay the respondent’s costs on a 2B basis for the filing of a memorandum and for an appearance by one counsel at a hearing that morning. In a minute dated 3 March 2022, Venning J declined Mr Jindal’s application for a recall of the earlier minute.
Mr Jindal wishes to appeal against the decisions in both minutes. However, while he served a notice of appeal on the respondent within time, he erroneously failed to file the notice of appeal in this Court. Hence he makes an application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time within which to file his notice of appeal. The respondent abides the Court’s decision on that application.
Discussion
An application for an extension of time under r 29A is to be determined by reference to the principles stated by the Supreme Court in Almond v Read, namely:[1]
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
A decision to refuse an extension of time based substantially on the lack of merit of the proposed appeal should be made only where the lack of merit is readily apparent and the appeal is clearly hopeless.[2]
[1]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39].
[2]At [39(c)].
So far as the proposed appeal against the minute of 3 March 2022 is concerned, the application for an extension of time must be declined for lack of merit. The reason is that an application for recall is an interlocutory application in respect of which an application for leave to appeal to this Court must first be made to the High Court under s 56(3) of the Senior Courts Act 2016. No such application was made.
The position is different in respect of the application for an extension of time to appeal from the costs order. The delay was only nine days. The error was a straightforward one in the form of a failure to include the Court of Appeal registry in the email which served the notice of appeal on the respondents. The respondent received the notice in time and it is very unlikely that it will have suffered any prejudice. The error was rectified as soon as the appellant became aware of it.
Consequently, although one may doubt the cost benefit analysis of an appeal to this Court from a comparatively small order for costs, I consider that in the circumstances the application for an extension of time to file the notice of appeal in respect of the minute of 1 March 2022 should be granted.
Result
The application for an extension of time to appeal is granted in respect of the High Court minute dated 1 March 2022. The effective date of filing the notice of appeal is the date of this judgment.
The application for an extension of time is declined in respect of the High Court minute dated 3 March 2022.
As the appellant is being granted an indulgence and the respondent abided, there is no order for costs.
Solicitors:
Minter Ellison Rudd Watts, Auckland for Respondent
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