Laserking Computer Consultants Ltd v Odyssey Solutions Ltd HC Auckland CIV 2005-404-1719

[2005] NZHC 1754

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-1719

BETWEEN

LASERKING COMPUTER

CONSULTANTS LIMITED

Applicant

AND

ODYSSEY SOLUTIONS LIMITED

First Respondent

AND

ALEXANDER IANOVSKI

Second Respondent

Hearing:

12 May 2005

Appearances: P Dale for Applicant

S Barter for First and Second Respondents Judgment: 13 May 2005

JUDGMENT OF SIMON FRANCE J

This judgment was delivered by Justice Simon France on 13 May 2005 at 5.00 p.m. pursuant to r540(4) of the High Court Rules 1985.

Solicitors:

Grove Darlow & Partners, Solicitors, P O Box 2882, Auckland Barter & Co., Solicitors, P O Box 197, Albany Village

LASERKING COMPUTER CONSULTANTS V ODYSSEY SOLUTIONS And Anor HC AK CIV 2005-404- 1719 [13 May 2005]

[1]    Pursuant to r 704(3), the applicant seeks an extension of time to appeal the judgment of the District Court in the civil proceedings between the parties. Rule 704(3) is described in terms of “special leave”. The proceedings involved a dispute over the terms of a contract, and in particular whether an estimate was just that, or was to be seen as a quote which fixed the price of the contract. The  applicant was the unsuccessful plaintiff. The respondent succeeded on a small counterclaim ($7,000).

[2]    It is common ground that the date by which an appeal had to be lodged was 7 February 2005. The notice seeking an extension of time was filed on 30 March  2005.

[3]    The principal officer of the applicant, Mr Christie, has filed an affidavit in which he sets out the reasons for the delay. The applicant accepts that he received advice from Mr Dale on 24 January 2005 that the time for filing the appeal expired on 7 February 2005. Mr Dale advises that at that time he sought further information from Mr Christie, and that he was in a position to give only initial advice on 7 February.

[4]    Mr Dale then received further instructions and ultimately provided fuller advice on 17 March that there was a basis to appeal. The application for special  leave to appeal was then filed on 30 March. Concerning the delay, in his affidavit, Mr Christie states that:

12.At the time I received the Decision, and in the subsequent months I have not been able to give the matter of the appeal my utmost priority. Since November 2004, I have been working on three major projects which are still works in progress. This has involved me in working mostly seven days a week since that time.

13.While I accept these delays have been of my own making, I now intend to focus on the appeal.

[5]    Before me today, Mr Dale advanced the application on the basis that there was merit in the appeal and that there was no prejudice to the respondent. He also indicated that the interests of justice supported the granting of the appeal, in that, in

his submission, Mr Christie had not yet had a fair day in Court. This requires some elaboration.

[6]    Mr Christie represented the plaintiff on the hearing in the District Court. The circumstances in which this occurred were canvassed before me in some detail. It is sufficient at this stage to record that instructed counsel withdrew about a month prior to the hearing for reasons unassociated with Mr Christie. Alternative counsel took the brief, but then also withdrew.

[7]    The relevance of this background is that Mr Dale wishes to advance the appeal on a basis that is different from that on which the case was conducted or pleaded. The case, as run and pleaded, concerned whether an estimate of 160 hours, plus or minus 30, was a quote or an estimate. Mr Dale says a better focus would  have been whether the estimate was an actionable misrepresentation. In the judgment, Her Honour finds that the contract was at all times the written agreement entered into in August. The estimate was given in October and repeated in November. Her Honour finds that the estimate was only ever that, and in doing so makes an express finding rejecting Mr Christie’s credibility.

[8]    Against this background I find it difficult to see how Mr Dale could advance his appeal point. Such difference as might exist between the issues of whether it was a quote and a term of the contract, or whether it was an actionable representation seem quite fine to me.  Mr Dale urged me not to assume hopelessness of the appeal.  I accept that, but also note that his label of the appeal as being “difficult” puts it, in my view, at its best.

[9]    The new “point on appeal” is in effect a claim under the Contractual Remedies Act. It alleges a misrepresentation occurring after the contract was  formed. If there is a difference in the context of this case between the concepts of quote and actionable representation, then trial counsel should have had the opportunity to focus the evidence on that difference and seek findings of fact concerning it.

[10]   Mr Dale submitted to me that I should not be concerned as to any of this. If I am right, he said, then the applicant will lose and costs will deal with it. Whilst there is some strength in this, the merits of the appeal are a relevant factor and I do not consider it is the type of appeal that demands that a Court give special leave to allow it to be run.

[11]   Also, I accept that Mr Christie may have been left in late difficulties, but the shape of the case was fixed long before counsel departed. There is merit in Mr Barker’s point that one should look at this aspect from the respondent’s viewpoint. If, and I stress it as an if, Mr Christie was poorly advised, that is not a reason to expose the respondent to another round of costs and all the other commitments that are involved in Court proceedings.

[12]   Accordingly, both on merits on the appeal and on interests of justice point, I find these factors weigh against the grant of leave.

[13]   I accept the delay is not extensive. As it happens, over the relevant period of seven weeks the respondent did not even know the judgment was delivered so certainly had not acted in reliance on it. On the other hand there is no good reason at all for the delay. Mr Dale pointed to the costs of filing an appeal as a legitimate reason for failing to file an appeal notice preserving the situation. I would  be hesitant to accept that as a legitimate consideration, but note in any event that it is not something Mr Christie actually adverted to as a relevant factor.

[14]   Concerning prejudice, I accept that costs will address much of that, but they are not, in my view, a complete answer. There are other considerations, such as time commitment for the parties, and intangibles such as the emotional expenditure inevitably attached to being involved in litigation, that merit some weight.

[15]   On balance, I am not satisfied that it is appropriate to grant special leave. I place some weight on the fact that the Rules call it “special leave”. There has been no good reason for the delay. The intended appeal involves a substantial reworking and reshaping of the case.

[16]   The sums involved in the case are not large, there are clear credibility findings, and I consider at this stage finality is a better route.

[17]   Accordingly, I decline special leave. The respondent is entitled to costs on a 2B basis, together with reasonable disbursements to be fixed by the Registrar if needed.

Simon France J