Lesa Systems Limited v Canzac Limited - [2007] NZCA 375

IN THE COURT OF APPEAL OF NEW ZEALAND
CA240/06
[2007] NZCA 375
BETWEENLESA SYSTEMS LIMITED

Appellant

ANDCANZAC LIMITED

Respondent

Hearing:20 August 2007

Court:Hammond, Robertson and Ellen France JJ
Counsel:No appearance for Appellant

D L Marriott and M Scally for Respondent (applicant)

Judgment:30 August 2007 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time in which to apply for the allocation of a hearing date and in which to file the case on appeal is dismissed with the consequence that the appeal is to be treated as having been abandoned.

B        There is no order for costs.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]       This is an application under r 43(2) of the Court of Appeal (Civil) Rules 2005 for leave to extend the period of time to apply for the allocation of a hearing and for filing a case on appeal. The application is made by Canzac Limited, the respondent and cross-appellant.
Background
[2]       Lesa Systems Limited, the appellant, brought copyright proceedings against Canzac. In the course of the proceedings, Lesa unsuccessfully sought an interim injunction. Immediately after the interim injunction hearing, Canzac wrote to Lesa on a without prejudice basis save as to costs. Canzac referred to difficulties with the case identified by the Judge in the interim injunction decision and in terms of authority from this Court. The matter went to trial but Lesa discontinued the proceedings after closing submissions. Canzac sought indemnity costs against Lesa in relation to the discontinued proceedings.
[3]       In a judgment delivered on 4 October 2006, John Hansen J awarded costs to Canzac on a 2C basis with an allowance for second counsel: HC CHCH CIV 2006‑409-624. Lesa appealed on the grounds that costs on a 2B basis were appropriate. Canzac cross-appealed on the basis that indemnity costs should have been awarded.
[4]       After the appeal and cross appeal were filed, the parties entered into settlement discussions. These discussions got to the point where there was an oral agreement to settle but Lesa’s counsel then advised that he no longer had instructions from Lesa and Lesa did not sign the settlement agreement.
[5]       By that time, 23 May 2007, the deadline for filing the case on appeal for the cross appeal (6 May 2007) had expired.
[6]       There was no appearance for Lesa at the hearing of the present application, counsel having been instructed to take no steps on this application although reserving its position depending on the outcome.
Discussion
[7]       Rule 43(2) provides for the court to grant an extension of time for filing the case on appeal. In Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29 (CA) this Court said at 31 that if there was a “sound reason” for allowing further time and the appeal is “not devoid of merit” the Court “will grant the indulgence of an extension of time as a matter of normal practice”.
[8]       The lapse of time for filing the case on…

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: [2007] NZCA 375
Decision Date: 30 August 2007

CaseChat Overview and Summary

Lesa Systems Limited, the appellant, brought copyright proceedings against Canzac Limited, the respondent, following an unsuccessful attempt to obtain an interim injunction. The proceedings went to trial, but Lesa discontinued them after closing submissions. Canzac sought indemnity costs against Lesa in relation to the discontinued proceedings. The trial judge awarded costs on a 2B basis with an allowance for second counsel. Lesa appealed, arguing that costs on a 2B basis were appropriate, and Canzac cross-appealed on the basis that indemnity costs should have been awarded. After the appeal and cross appeal were filed, the parties entered into settlement discussions that reached an oral agreement to settle. However, Lesa's counsel subsequently advised that he no longer had instructions from Lesa, and Lesa did not sign the settlement agreement. By that time, the deadline for filing the case on appeal for the cross appeal had expired. Canzac applied for an extension of time in which to apply for the allocation of a hearing date and in which to file the case on appeal.

The legal issue before the court was whether there was a sound reason for granting an extension of time for filing the case on appeal. The court considered that while there were factors that may have justified an award of indemnity costs, the cross-appeal was without merit. The court noted that the trial judge had considered the relevant factors, and the case was not completely hopeless. The court concluded that leave should be declined because the cross-appeal was without merit.

The court dismissed the application for an extension of time in which to apply for the allocation of a hearing date and in which to file the case on appeal, with the consequence that the appeal is to be treated as having been abandoned. There was no order for costs.

Orders