Land Trust Limited v Wam Property Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA425/2019
[2019] NZCA 642

BETWEEN	LAND TRUST LIMITED First Appellant STEPHEN ROBERT KELLY and CITILOFTS (TRUSTEE) LIMITED AS TRUSTEES OF THE 44 KEMPTHORNE TRUST Second Appellants WESTMINSTER FINANCIAL SERVICES LIMITED AS TRUSTEE OF THE 44 KEMPTHORNE TRUST Third Appellant
AND	WAM PROPERTY LIMITED Respondent

Court:	Brown, Simon France and Hinton JJ
Counsel:	M G Locke for Appellants D K Wilson for Respondent
Judgment (2): (On the papers)	11 December 2019 at 4.30 pm

JUDGMENT (No 2) OF THE COURT

Order extending the time for the appellants to pay the further security for costs directed in our judgment [2019] NZCA 573 to 5.00 pm on 23 December 2019.

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REASONS OF THE COURT

(Given by Brown J)

In a judgment delivered on 20 November 2019[1] an order was made reinstating the appellants’ claim, subject to conditions which included that the appellants were to pay security for costs of $35,000 within one week of the date of the judgment and to pay a further amount of security for costs in the sum of $35,000 within three weeks of the date of the judgment.[2]
[1]Land Trust Ltd v WAM Property Ltd [2019] NZCA 573.
[2]If the appellants confirmed in writing that their claim was limited to return of the deposit, interest and costs, the second amount of security was reduced to $20,000.
The appellants paid the first tranche of security within time. However they claim to be unable to pay the second tranche of $35,000 by today and seek an extension of time for payment of that sum to 5.00 pm on Monday 23 December 2019.
The respondent opposes the extension. In a memorandum dated 10 December 2019 Mr Wilson submitted that the judgment delivered on 20 November 2019 is final and conclusive and that there is nothing special or exceptional that would justify the exercise of the power to recall or reopen the judgment under r 8A of the Court of Appeal (Civil) Rules 2005.
While recognising the force of Mr Wilson’s submission that the appellants are seeking a further indulgence, given the fact that the first payment has been made we consider that it is appropriate to allow the appellants one final opportunity to make payment of the second security instalment. We consider that the power to extend the time is provided by r 5(2) of the Rules, there having been no appeal from our judgment which would render this Court functus officio.
Accordingly we make an order extending the time in order B(ii) of our judgment to 5.00 pm on 23 December 2019.
No further extension will be countenanced. If the second payment is not made by that date the order at [34] of our judgment will take effect.

Solicitors:
Ponsonby Law Ltd, Auckland for Appellants
Whaley Garnett, Auckland for Respondent

CaseChat Overview and Summary

Land Trust Limited, Stephen Robert Kelly, and Citilofts (Trustee) Limited as Trustees of the 44 Kempthorne Trust were the appellants in the case against WAM Property Limited, the respondent. The legal dispute pertained to the terms and conditions of a security for costs that had been previously ordered by the Court of Appeal. The appellants sought an extension of time to pay the second tranche of the security for costs, while the respondent opposed the extension, arguing that the judgment was final and conclusive. The case was heard by Brown, Simon France, and Hinton JJ, with counsel M G Locke representing the appellants and D K Wilson representing the respondent. The Court of Appeal extended the time for the appellants to pay the further security for costs, permitting them to make the payment by 5.00 pm on 23 December 2019. The Court reasoned that the appellants had already made the first payment within the time frame, and it was appropriate to grant them one final opportunity to make the second payment. The Court further stated that no further extensions would be considered, and if the second payment was not made by the specified date, the original order would take effect.

The legal issues before the Court of Appeal were whether the Court should exercise its power to extend the time for the appellants to pay the further security for costs, and whether the judgment was final and conclusive as argued by the respondent. The Court of Appeal found that the power to extend the time was provided by r 5(2) of the Rules, and that there was no appeal from the previous judgment which would render the Court functus officio. The Court concluded that it was appropriate to allow the appellants one final opportunity to make the payment of the second security instalment, and made an order extending the time in order B(ii) of their previous judgment to 5.00 pm on 23 December 2019.

The Court of Appeal made an order extending the time for the appellants to pay the further security for costs to 5.00 pm on 23 December 2019. The Court emphasized that no further extension would be countenanced, and if the second payment was not made by that date, the order at [34] of their previous judgment would take effect. The Court considered the force of the respondent's submission that the appellants were seeking a further indulgence, but ultimately decided to grant the extension given that the appellants had already made the first payment within the time frame. The Court also noted that there was no appeal from their previous judgment which would render the Court functus officio. The decision highlights the Court of Appeal's willingness to consider the circumstances of each case and exercise its discretion to grant an extension of time, while also emphasizing the importance of adhering to the conditions set out in the original judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established