Thirty Eight Moffat Limited v Auckland Council

[2022] NZCA 186

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA710/2021
 [2022] NZCA 186

BETWEEN	THIRTY EIGHT MOFFAT LIMITED Appellant
AND	AUCKLAND COUNCIL First Respondent WATERCARE SERVICES LIMITED Second Respondent

Court:	Gilbert and Collins JJ
Counsel:	G M Illingworth QC and S J Ryan for Appellant PMS McNamara and C J Ryan for Respondents
Judgment: (On the papers)	16 May 2022 at 9 am

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for a hearing date is granted. 

BWe direct the Registrar to allocate a hearing date for this appeal in accordance with the joint memorandum of counsel dated 29 March 2022.

CWe make no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

1. The appellant applies pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time to apply for the allocation of a hearing date. 

2. The appeal is against a judgment of the High Court delivered on 8 November 2021 declining to make an order declaring a bylaw invalid.[1]  The notice of appeal was filed on 6 December 2021.  Security for costs was paid on 21 January 2022.  On 4 March 2022, the appellant applied for a brief extension of time (from 7 March 2022 to 28 March 2022) to apply for the allocation of a hearing date.  Mr Ryan, junior counsel for the appellant, explained that the extension was needed because he had been unable to confer with the appellant over the holiday period and wished to confer with senior counsel, including as to whether amended grounds of appeal should be filed.

   [1]Thirty Eight Moffat Ltd v Auckland Council [2021] NZHC 2978.

3. The respondents initially took the position that they would not formally oppose the application and would abide the decision of the Court.  They noted, however, that there was no explanation as to why counsel could not have been consulted before the deadline and argued that the appeal is without merit.

4. On 28 March 2022, the appellant filed amended grounds of appeal, filed the case on appeal, applied for a hearing date and paid the requisite filing fee.  On 29 March 2022, counsel filed a joint memorandum agreeing that a one-day hearing would be required for the appeal.    

5. We are satisfied that the interests of justice require that the application be granted, applying the well-settled principles set out by the Supreme Court in Almond v Read.[2]  In particular, we note the delay was short and has caused no prejudice to the respondents.  We consider the delay has been adequately explained.  We note that amended grounds of appeal were filed during the period for which an extension was sought.  These considerations point strongly in favour of granting the application.  This is not one of those rare cases where the merits of the appeal weigh in the balance.  The respondents accept the appeal is not hopeless.

   [2]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801. See Yarrow Westpac New Zealand Ltd [2018] NZCA 601 at [4].

6. The appellant submits that any issue as to costs should be addressed as part of the substantive appeal.  The respondents sought costs in the event only that the application is declined.  We consider that the issue of costs on this application should be addressed now. 

7. The application was required because of the appellant’s delay.  On the other hand, the respondents probably ought not to have opposed it and have risked an adverse costs award in doing so.  However, on balance, we do not consider the appellant should receive costs.  We therefore make no order as to costs.

Result

1. The application for an extension of time to apply for a hearing date is granted.

2. We direct the Registrar to allocate a hearing date for this appeal in accordance with the joint memorandum of counsel dated 29 March 2022.

3. We make no order for costs.

Solicitors:
Govett Quilliam, New Plymouth for Appellant
Simpson Grierson, Auckland for Respondents