Ward v Lochore - [2020] NZCA 23

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA465/2019
[2020] NZCA 23

BETWEEN	RUSSELL STUART WARD Applicant
AND	ANGUS JAMES LOCHORE Respondent

Court:	Courtney and Collins JJ
Counsel:	Applicant in person W C Pyke for Respondent
Judgment: (On the papers)	24 February 2020 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 is declined.
BThe respondent is entitled to costs in this Court for a standard application on a band A basis.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Ward has applied for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) to pursue his appeal from a judgment of Katz J, delivered in the High Court at Hamilton on 12 June 2019.[1]
[1]Ward v Lochore [2019] NZHC 1314.
Mr Ward filed an application for an extension of time to appeal on 12 September 2019 as he was 46 days out of time to appeal the High Court judgment.
In the High Court, Katz J struck out proceedings brought by Mr Ward against Mr Lochore following the termination of Mr Ward’s lease of commercial premises. The High Court Judge was satisfied that none of Mr Ward’s causes of action against Mr Lochore were tenable. Mr Ward does not wish to challenge the substance of the High Court judgment. His appeal is confined to the decision of Katz J to award costs and disbursements in favour of Mr Lochore on a scale 2B basis.

Application

Mr Ward, who is not represented, wishes to argue that he should not be required to pay costs in the High Court. This is because he could not be awarded costs in the event that he succeeded as he was not represented by counsel, and that this gives rise to judicial discrimination and offends the doctrine of equality before the law. Mr Ward says the High Court Judge should have ordered the parties meet their own costs.

Governing principles

In Almond v Read,[2] the Supreme Court explained that the following criteria apply when considering an application for an extension of time under r 29A of the Rules:
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties;
(d)any prejudice or hardship to the respondent; and
(e)the significance of the issues raised by the appeal.
[2]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
The Supreme Court explained that a decision to refuse an extension of time may be based on the absence of merits to the appeal only in cases “where the appeal is clearly hopeless”.[3] The Supreme Court cautioned against the use of the power to refuse an application under r 29A “as a mechanism to dismiss apparently weak appeals summarily”.[4]

Analysis

[3]At [39(c)].

[4]At [39(c)].

Applying the criteria in Almond v Read, we are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ward v Lochore

Details

AGLC: Ward v Lochore [2020] NZCA 23
Case: [2020] NZCA 23
Decision Date: 24 February 2020 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the matter of Ward v Lochore was presented to Courtney and Collins JJ. The applicant, Russell Stuart Ward, sought an extension of time to appeal a judgment delivered by Katz J in the High Court at Hamilton. The High Court judgment dismissed Ward's claims against Angus James Lochore, following the termination of Ward's lease of commercial premises, and awarded Lochore costs and disbursements. Ward's appeal is limited to the decision to award costs in favour of Lochore. The legal issues revolved around whether Ward could challenge the costs order and if he could be granted an extension of time to appeal despite being outside the statutory deadline.

The Court examined the criteria for granting an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005, which included the length of delay, reasons for the delay, conduct of the parties, prejudice to the respondent, and the significance of the issues raised. Ward's appeal was considered "clearly hopeless" as it lacked merit, and the Court highlighted that the primary rule is that lay litigants in New Zealand are not entitled to recover costs against an unsuccessful party. The Court found that the High Court judge had correctly exercised her discretion in awarding costs to Lochore, and there was no basis for suggesting bias or error in the judgment. Consequently, the application for an extension of time was declined, and Lochore was awarded costs for the standard application on a band A basis.

The Court's decision was based on the lack of merits in Ward's appeal, as it was highly unlikely to succeed. The Court emphasised that the costs regime in the High Court was consistent with the general principles that the unsuccessful party shall pay costs, and it was not discriminatory or in violation of the principle of equality before the law. Ward's decision not to be represented by counsel did not entitle him to costs if he were to succeed, and the Court found no basis for interference with the costs order made by Katz J. The appeal was brought to an end, and Lochore was awarded costs for the standard application on a band A basis.

Orders