SOS Investments Limited v FM Custodians Limited

[2015] NZCA 296

IN THE COURT OF APPEAL OF NEW ZEALAND

CA243/2014
[2015] NZCA 296

BETWEEN	SOS INVESTMENTS LIMITED Appellant
AND	FM CUSTODIANS LIMITED Respondent

Hearing:	8 July 2015
Court:	Miller, Lang and Wylie JJ
Counsel:	R J Katz QC for Appellant R B Stewart QC and N L Penman-Chambers for Respondent
Judgment:	8 July 2015 at 11.11 am

ORAL JUDGMENT OF THE COURT

The Court makes the unless order referred to in paragraph [5]. If it is not complied with, the appeal will be dismissed without further hearing. If it is complied with, the timetable directions in paragraph [6] apply.

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REASONS OF THE COURT

(Given by Miller J)

1. This is an appeal against refusal of summary judgment.  It was made clear before the hearing that the appellant company, which had filed its own submissions and whose solicitor was given leave to withdraw, must appear by counsel at the hearing. 

2. At the hearing today Mr Katz QC appeared to seek an adjournment.  He has only just been instructed and is in no position to argue the appeal on its merits.  He anticipates that he will be briefed for the appeal by an instructing solicitor, but he does not presently have one. 

3. The attitude of the respondent is that it wishes to proceed but would prefer a short adjournment to the alternative, which is likely to involve further procedural difficulties.  A fixture is available on 29 July in Wellington.

4. It must be said that this situation is profoundly unsatisfactory and to grant an adjournment is to extend a considerable indulgence to the appellant, which has failed to explain at all its default in briefing counsel. 

5. Under r 48 of the Court of Appeal rules this Court on the hearing of an appeal has all the powers and duties of the High Court concerning procedure.  That includes the making of unless orders.  Having regard to the appellant’s conduct, we think it is appropriate to make such an order as a condition of an adjournment.  We require that New Zealand solicitors confirm to the Registrar that they will become solicitors on the record and will instruct Mr Katz and will protect him for his fee on the hearing of the appeal.  We require also that costs of $1500 be paid for today’s adjournment.  Unless both of those steps are undertaken by 5 pm on Friday the appeal will be dismissed without further hearing.

6. Assuming the unless order is complied with, Mr Katz must file his submissions by 17 July.  Mr Stewart must file his submissions in response by 24 July.  The hearing will be held on 29 July at Wellington at a time to be fixed by the Registrar.  Counsel may appear by video if it is not convenient to appear in Wellington.