Logan v Horsfall

[2025] NZHC 2923

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2025-416-25

[2025] NZHC 2923

BETWEEN

MATTHEW JOHN LOGAN AND KATHERINE MARY FALWASSER
Appellants

AND

GEORGE ALAN HORSFALL, DEBORAH JOAN HORSFALL and AMY-KELLY

CLARK

Defendants

Hearing:	29 September 2025
Counsel:	J C Bunbury for Appellants R C D Bevins for Defendants
Judgment:	3 October 2025

JUDGMENT OF CHURCHMAN J

[1]        The appellants have made an interlocutory application for extension of time to file an appeal. The defendants oppose.

Factual background

[2]        The appellants (as plaintiffs) had sought an injunction against the respondents in the District Court in Gisborne to prohibit the respondents undertaking certain earthworks.

[3]The proceedings came before Judge W P Cathcart.

[4]        The appellant’s counsel, Mr Bunbury attended on 10 March 2025 before Judge Cathcart. The respondent’s counsel did not initially attend. Judge Cathcart

LOGAN AND FALWASSER v HORSFALL and ORS [2025] NZHC 2923 [3 October 2025]

stood   the    proceedings    down   for   inquiries    to   be    made    as    to    why    the defendant/respondent’s counsel, Mr Bevins, was not in attendance in Court.

[5]        The written transcript of the oral decision records that Mr Bunbury left the hearing before it concluded, contrary to a direction by the Judge. The Judge then invited Mr Bevins to make  an  application  to  strike  the  proceedings  out  which Mr Bevins proceeded to do. The Judge then struck the proceedings out.

[6]        A minute issued by the Judge on 10 March 2025 said “Proceedings struck out. See reasons”. No reasons were provided. The reasons (in the form of a transcript of the oral judgment) were not provided by the Court to Mr Bunbury until 20 August 2025.

[7]By this date, the time for appealing the interlocutory decision had expired.1

[8]        Three working days after the written transcript of the oral decision was received, counsel for the appellants filed a notice of appeal together with the interlocutory application.

The law

[9]        Rule 20.4(2)(b) of the High Court Rules 2016 (HCR) provides that an appeal from the District Court to the High Court must be filed “…within 20 working days after the decision appealed against is given”.

[10]      HCR 20.4(3) relates to the Court having the power to extend the time prescribed for appealing if the enactment that confers the right of appeal permits the extension or does not limit the time prescribed for bringing the appeal. In this case, the enactment conferring the right of appeal (HCR 20.4) does not expressly permit any extension of time and does limit  the  time  prescribed  for  brining  the  appeal.  HCR 20.4(3) is therefore not relevant.

1      HCR 20.4(2) – 20 working days after the decision appealed against is “given”.

[11]      The respondent contends that, in terms of HCR 20.4(2)(b) the decision was “given” and submits that the failure to give any reasons at all does not alter the fact that the decision was “given”.

[12]The respondent relies on HCR 20.5 which says:

For the purposes of rr 20.3 and 20.4, a period begins when the decision to which it relates is given, whether or not —

(a)reasons for the decision then or later; or

(b)formal steps, such as entering or sealing the decision, are necessary or are taken after the decision is given.

[13]      An important feature of the present case is that the very brief minute of  Judge Cathcart clearly conveys the impression that reasons exist and are available to be referred to or “seen”. That was clearly not the case and no record of any reasons in the sense of a written document recording them, existed for several months.

[14]      Where a decision is, on its face, clearly incomplete, in that it does not contain an important part of it which is impliedly represented as existing, it cannot be interpreted as having been “given” in the sense that the word given is used in HCR 20.4(2)(b). On that basis time does not run until the decision is completed. This occurred here when the reasons were provided in writing. The notice of appeal accordingly is not out of time.

[15]In the alternative, I consider the availability of HCR 1.5. This rule provides:

Non-compliance with rules

(1)A failure to comply with the requirements of these rules —

(a)must not be treated as an irregularity; and

(b)does not nullify —

(i)the proceedings; or

(ii)any step taken in the proceeding; or

(iii)any document, judgment, or order in the proceedings.

[16]      The discretion conferred in HCR 1.5 must be exercised judicially and the Court may look at all the circumstances.2

[17]      A further factor influencing the exercise of the discretion is whether there are any unusual circumstances demanding a flexible approach.3

[18]      I also note that the Supreme Court in Almond v Read4 indicated that, when considering r 29A of the Court of Appeal (Civil) Rules 2005, the overall consideration in the exercise of the discretion to extend time was what the interests of justice require.

[19]      In determining the interests of justice the Supreme Court in that case indicated that the particular circumstances of the case need to be considered including: the length of the delay; the reasons for the delay; the conduct of the parties (particularly the applicant); any prejudice or hardship to the respondent or others with a legitimate interest in the outcome; the significance of the issues raised by the proposed appeal both to the parties and more generally.

[20]      Neither the applicant nor respondent addressed these issues in their submissions. The Court therefore has an incomplete understanding of all the relevant facts. However, what can be said is that the delay is not the fault of the applicant. The “reasons” that the Judge’s minute of 10 March 2025 alluded to as then existing were not available to the applicants until 20 August 2025. The applicants did not delay once they were made available but promptly applied for leave.

[21]      There is insufficient information to assess what, if any, prejudice there might be to the respondents. Counsel’s submissions asserted that  the  issues  in  the District Court were “…materially identical to the appellant’s counter claim against the respondents in the High Court Civil proceeding”. No copy of the counter claim was provided. Neither was there any development of what the words “materially identical” might mean. On the information available I am not able to identify any particular prejudice.

2      Metroinvest Ansalt v Commercial Union Assurance Co [1985] 2 All ER 318.

3      D G S W v K (1998) 12 PRNZ 462.

4      Almond v Read [2017] 1 NZLR at [801].

[22]      Accordingly, in terms of HCR r 1.5 I believe the interests of justice require the granting of the application for leave to appeal out of time.

Outcome

(a)The notice of appeal is accepted for filing as being within the time limit as set out in HCR 20.4(2)(b), alternatively

(b)If leave is required, leave is granted to file the notice of appeal out of time pursuant to the Court’s powers in HCR 1.5

Churchman J

Solicitors:

Grey Street Legal Limited, Gisborne for Appellants Woodwood Chrisp, Gisborne for Respondent