Patrick v Bank of New Zealand

[2017] NZCA 362

IN THE COURT OF APPEAL OF NEW ZEALAND

CA353/2017
[2017] NZCA 362

BETWEEN	JOHN STEPHEN PATRICK Appellant
AND	BANK OF NEW ZEALAND Respondent

Counsel:

A J Woodhouse for Appellant
R J Gordon for Respondent

Judgment:

(On the papers)

23 August 2017 at 11.30 am

JUDGMENT OF WINKELMANN J

The application for an extension of time in which to serve the application for dispensation of security for costs is granted.

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REASONS

1. Mr Patrick has applied for an extension of time to serve his application for dispensation of security for costs.  Rule 35(7)(a) of the Court of Appeal (Civil) Rules 2005 requires that the application be filed and served within 20 working days of the filing of the notice of appeal. 

2. Because the application for dispensation was served late on the Bank of New Zealand, the Deputy Registrar had no jurisdiction to consider it.  Only the Court may direct that time be extended under r 5(2) and accordingly the Deputy Registrar referred this matter to me. 

3. Mr Patrick explained the delay in serving the Bank with the application for dispensation was due to the time taken to find a replacement barrister, as his original adviser had taken bereavement leave.  This meant Mr Patrick had no one to help with the issues in connection with the request for dispensation.

4. The Bank opposes the application for an extension of time.  It says that it “considers the appeal to be meritless, and sees no good reason why it should have to forego a respondent’s normal degree of protection against the risk of non-payment of costs”.

5. Mr Patrick’s new lawyer, Mr Woodhouse, has advised Mr Patrick applied for legal aid at the time he filed his notice of appeal.  However, the application for legal aid was incomplete (the name of the proposed legal service provider was not provided) and was sent to the Rotorua Legal Aid Office on or about 26 or 27 June.  Mr Patrick later learned that office had been decommissioned.  He submitted a fresh application to the Wellington office on 7 July 2017.

6. The first question which arises is whether r 36 of the Court of Appeal (Civil) Rules applies so that, pursuant to r 36(3), Mr Patrick does not even need to pay security at this time.

7. Rule 36 provides in material part:

   36       Security for costs: legal aid

   (1)This rule applies to every appeal in which the appellant has applied for, or been granted, legal aid at the time the appeal is brought.

   (2)An appellant who has been granted legal aid at the time the appeal is brought does not need to pay security for the respondent’s costs in the Court.

   (3)An appellant whose application for legal aid has not been determined at the time the appeal is brought does not need to pay security for the respondent’s costs in the Court while that application is pending.

8. I am satisfied that r 36 is not engaged.  Although there can be an argument as to whether an application for legal aid which does not include the legal provider’s name is in fact an application for the purposes of r 36, I proceed on the basis that an application for legal aid sent to an incorrect address does not constitute an application for legal aid for the purposes of r 36. 

9. No application for legal aid having been made at the time the appeal was brought, I therefore turn to the application for an extension of time.  The slight period of delay in service of the application weighs heavily in favour of granting that extension, especially when Mr Patrick has a reasonable explanation for that delay.  I also note that there is no suggestion that the delay has caused prejudice to the Bank.  I do not consider that the merits of the proposed appeal are relevant to the exercise of my discretion to extend the time for service of the application for dispensation of security, where the delay in question is slight and there is an adequate explanation for that delay.

10. Accordingly, Mr Patrick’s application for an extension of time to serve the application for dispensation of security for costs is granted.  The effect of the grant of the required extension is that the Deputy Registrar may now proceed to consider the application for dispensation.

Solicitors:
Woodhouse Law, Auckland for Appellant
MinterEllisonRuddWatts, Wellington for Respondent