M S Jackson v Sure Communications Limited

[2002] NZCA 60

IN THE COURT OF APPEAL OF NEW ZEALAND CA295/01

BETWEEN	M S JACKSON
Applicant

AND	SURE COMMUNICATIONS LIMITED
First Respondent

AND	J W J MCKNIGHT
Second Respondent

AND	R HUMPHRIES
Third Respondent

AND	G READY
Fourth Respondent

Hearing:	11 March 2002
Coram:	Gault J Blanchard J McGrath J
Appearances:	B M Cunningham for Applicant B A Vautier for Respondents
Judgment:	11 March 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT J

1. The applicant seeks special leave under r5(1) Court of Appeal (Civil) Rules 1997 to appeal against a judgment of the High Court.

2. A notice of appeal was filed on 28 September 2001.  That was out of time, the judgment of the High Court against which the appeal was brought having been sealed on 27 August 2001.  The applicant omitted, also through oversight, to give security for costs within the time fixed by r11.  The applicant was advised of that on 30 October.

3. The present application was made on 21 December 2001.  An earlier unsuccessful application had been made on 12 November.

4. The decision of the High Court in respect of which the applicant seeks leave to appeal was to award costs to the defendants in the High Court, the proposed respondents in this Court, after the applicant as plaintiff had elected non-suit.  Laurenson J did not order costs on an indemnity basis but allowed the defendants half of their costs according to the costs schedule.

5. The appeal was filed out of time, no application for special leave was filed for almost three months.  Security for costs was overlooked.  Even when attention was drawn to that, no step was taken for nearly two weeks and not effectively for nearly two months.  The appeal is against an order for costs only and appears to have little prospect of success being an appeal against the exercise of a discretion.

6. Overall we are not persuaded that this is a case which should have leave at this late stage.

7. The appeal is dismissed with costs to the respondents of $2,000 together with disbursements approved, if necessary, by the Registrar.

Solicitors
Dyer Whitechurch & Bhanabhai, Auckland, for Applicant
Glaistor Ennor, Auckland, for Respondents