Newport v Coburn

[2005] NZCA 14

IN THE COURT OF APPEAL OF NEW ZEALAND

CA234/04

BETWEENDAVID ALAN NEWPORT

Applicant

ANDALAN COBURN AND DALE MARGARET COBURN

First Respondent in CP 17/01

ANDINSTALLER SERVICES (MANAWATU) LIMITED

Second Respondent in CP 17/01

ANDDEAN STEVEN CORRY AND SELWYN HURSTWOOD JACKSON

Third Respondents in CP 17/01

ANDINSTALLER SERVICES LIMITED

Fourth Respondent in CP 17/01

ANDGEOFFREY OWEN JAMES LEEMING & SHARON TRACEY LEEMING

First Respondent in CP 18/01

ANDINSTALLER SERVICES (WELLINGTON) LIMITED (IN LIQUIDATION)

Second Respondent in CP 18/01

ANDDEAN STEVEN CORRY AND SELWYN HURSTWOOD JACKSON

Third Respondents in CP 18/01

ANDINSTALLER SERVICES LIMITED

Fourth Respondent in CP 18/01

Hearing:14 February 2005

Court:McGrath, William Young and O’Regan JJ

Counsel:R J Latton for Applicant

P T Finnigan for First and Second Respondents

Judgment:22 February 2005 

JUDGMENT OF THE COURT

The application for special leave extending the time prescribed for appealing is granted.  The appeal must be brought within 14 days after the date of this judgment.

The applicant must pay to the respondent costs of $1,500 plus reasonable disbursements (including the travel and accommodation costs of counsel).  If the parties are unable to agree on the amount of the disbursements, the amount will be set by the Registrar.

REASONS

(Given by O’Regan J)

Introduction   

[1]       The applicant Mr Newport was a defendant in proceedings brought by the respondents in the High Court (HC WN CP17/01 and CP18/01).  Following a trial, Durie J delivered judgment in these matters on 6 August 2004.  Mr Newport was, along with other defendants, found liable to the plaintiffs in respect of certain breaches of the Fair Trading Act.  The amount for which the defendants were liable in respect of CP18/01 was specified in the judgment of 6 August 2004.  The amount of liability under CP17/01 was not, however, quantified until a supplementary judgment was delivered by Durie J on 20 December 2004.

[2]       Mr Newport had a right to appeal against the High Court decision under s 66 of the Judicature Act 1908.  Under r 6(2)(b) of the Court of Appeal (Civil) Rules 1997, the time for the filing of the appeal expired on 6 September 2004.  No appeal was filed by that date.  However, Mr Newport applied on 5 November 2004 for special leave under r 6(3) of the Court of Appeal (Civil) Rules extending the time prescribed for appealing.  This judgment deals with that application.  

[3]       The grounds for the application are:

(a)       The delay in appealing has caused no prejudice to the respondents;

(b)        The delay in appealing was due to inaction and oversight by Mr Newport’s former solicitors;

(c)        Mr Newport will suffer substantial injustice if the application is not granted.

[4]       We deal with each of these in turn.

Prejudice

[5]       Counsel for the respondents, Mr Finnigan, accepted that the respondents could not point to any particular prejudice from the delay in filing the appeal, since they were unable to finalise the judgments until some outstanding issues (including the amount for which the defendants were liable in respect of CP17/01) were resolved by the judgment of 20 December 2004.  We accept, therefore, that the delay has not caused prejudice in this case.

Reason for delay

[6]       Counsel for Mr Newport, Mr Latton, said that the solicitors who had acted for Mr Newport in the High Court proceedings had let him down.  He said that they had acted for all of the defendants in circumstances where it was clear that there was a conflict between Mr Newport’s interests and those of the other defendants.  They had failed to notify Mr Newport of the time limit for the filing of an appeal and they had frustrated his attempts to obtain clarification of his potential liability and the status of the indemnity which had been given to him by one of the other defendants.  He said that, because of these factors, it was not until the end of September 2004 that Mr Newport became aware of the implications of the judgment for him.  The delay in seeking special leave (the present application was filed on 5 November) was because Mr Newport spent time seeking to ascertain the extent of the indemnity, and then needed to obtain advice as to whether there were reasonable grounds for an appeal.  In that regard his present solicitors were frustrated by the fact that his former solicitors did not provide them with a copy of the trial transcript or other relevant documents. 

[7]       Mr Finnigan pointed out that the respondents should not suffer as a result of the fact that Mr Newport was poorly treated by his former solicitors.  While we have some sympathy for that submission, it must be balanced against the fact that the respondents can point to no prejudice from the extension of time being granted.  We think this is a situation analogous to cases of genuine mistake or oversight where leave is often given if the appeal is out of time by only a short period, and no prejudice to the respondents ensues: Grey v Elders Pastoral Holdings Limited (1999) 13 PRNZ 353 (CA).

Substantial injustice

[8]       Mr Latton argued that there would be a substantial injustice for Mr Newport if he were not able to pursue his appeal.  He argued that there were reasonable grounds for appeal.  This was disputed by Mr Finnigan.  Having considered the submissions made by counsel we are satisfied that there may be valid grounds of appeal, and, having reached that conclusion, we say no more about the merits of the appeal.

Result

[9]       We are satisfied that it is appropriate to grant leave in this case and leave is granted accordingly.  The appeal must be brought within 14 days after the date of this judgment.

Costs

[10]     The applicant has applied to the Court for an indulgence, and in those circumstances it is appropriate that costs be awarded to the respondent.  The applicant must pay to the respondent costs of $1,500 plus reasonable disbursements (including the travel and accommodation costs of counsel).  If the parties are unable to agree on the amount of the disbursements, the amount will be set by the Registrar.

Solicitors:
Lowndes Associates, Auckland for Applicant
Rory Macdonald Law, Auckland for First and Second Respondents