Weston Ward and Lascelles v Primosso Holdings Limited CA152/04

[2005] NZCA 414

IN THE COURT OF APPEAL OF NEW ZEALAND

CA152/04

BETWEEN  WESTON WARD AND LASCELLES Appellants

ANDPRIMOSSO HOLDINGS LIMITED AND CAPITAL ACCEPTANCE LIMITED

First Respondents

ANDCOLTAR CORPORATION LIMITED AND ALLFUND MORTGAGE CORPORATION LIMITED

Second Respondents

ANDALLFUND FINANCIAL CORPORATION OF CANADA, ALLFUND MORTGAGE CORPORATION, BEECH HOLDINGS LIMITED, COLTAR CORPORATION LIMITED, A YUEN, A NIBLOCK,

S CHEN MING YIH AND P TAI ING YIH

Third Respondents

ANDPRIMOSSO HOLDINGS LIMITED, CAPITAL ACCEPTANCE LIMITED AND BEECH HOLDINGS LIMITED Fourth Respondents

Hearing:         12 December 2005

Court:            Anderson P, William Young and Robertson JJ Counsel:         T C Weston QC for Appellants

R B Stewart QC for Respondents

Judgment:      14 December 2005

JUDGMENT OF THE COURT

AThe application for extension of time is granted so that the time for filing the further amended statement of claim is extended retrospectively to

18 August 2005.

WESTON WARD & LASCELLES V PRIMOSSO HOLDINGS LIMITED & ORS CA CA152/04  14 December

2005

BThe respondents are ordered to pay the appellants costs of $1,500 and usual disbursements.

REASONS

(Given by William Young J)

[1]      In  our  earlier  judgment  between  the  present  parties  (Weston  Ward  and Lascelles v Primosso Ltd CA152/04 26 July 2005), we held that an amended statement of claim alleging negligence against the appellant solicitors should be struck out but that the respondents should be at liberty to re-plead the claim in deceit. That appeal was allowed by consent. Our judgment concluded in this way:

[10]     As a consequence, we allow the appeal and strike out the amended statement of claim.  We are deferring the effect of that latter order for

21 days so that Ms Hughes has the opportunity in the meantime to file a fresh statement of claim, presumably including causes of action in deceit.

Any  new  statement  of  claim  should  not  include  causes  of  action  in negligence. We express no view as to whether such new causes of action

may run into difficulties under r 187(3)(a) of the High Court Rules.

We will shortly explain the reference to r 187(3)(a).

[2]      The  21  day  period  specified  expired  on  16  August  2005.    The  further amended statement of claim was not filed until 18 August 2005 due to errors made by  the  respondents’  solicitor.    It  was  served  on  the  appellants’  solicitors  the preceding day, 17 August 2005.   The appellants’ position is that the proceedings must be regarded as having been struck out.

[3]      Rule 187 relevantly provides:

187      Filing of amended pleading

(1)       Subject to subclauses (2) and (5), any party may at any time before trial file an amended pleading and serve a copy thereof on the other party or parties.

…

(3)       An amended pleading may introduce—

(a)      A fresh cause of action which is not statute barred;

…

whether as an alternative or not.

(4)       …  an  amended  pleading  may  introduce  a  fresh  cause  of  action whether or not that cause of action has arisen since the filing of the statement of claim.

[4]      Both the appellants and the respondents see some possible advantage in the respondents being able to prosecute their claim in deceit in the context of the existing proceedings.    This  is  because  there  is  a  possible  limitation  defence.    If  the respondents can pursue their deceit claim in the existing proceedings they will be able to contend that it is not a “fresh cause of action” for the purposes of r 187(3)(a) and that it should therefore be treated as having been commenced in March 2003 (when the negligence claim was filed), cf Chilcott v Goss [1995] 1 NZLR 263 (CA).

[5]      The contention that the claim in deceit is not a “fresh cause of action” is not self-evidently correct.  If a “fresh cause of action”, it will presumably be struck out if the limitation period is held to have started to run earlier than 18 August 2001.  On the other hand, if we refuse to extend time, the respondents will be prejudiced by this refusal if it later transpires that the limitation period began to run between 18 August

2001 and today.

[6]      Rule 5(2) of the Court of Appeal (Civil) Rules 2005 provides:

The Court may extend or shorten the time appointed by these Rules, or fixed by an order, for doing any act or taking any proceedings or any step in a proceeding on any terms that the Court thinks just.

Such extension of time may granted even if the time fixed has already expired (see r 5(3)).   Mr Weston QC, for the appellant, recognises that the rule confers on us jurisdiction to extend time.

[7]      The primary argument advanced by Mr Weston in opposition to the extension of time is that it would be an indulgence too many.   He said that the respondents have been on notice since 2003 of the difficulties with the claim in negligence and that their arguments could only sensibly be advanced in the context of a claim in

deceit.  This was finally accepted by the respondents in this Court.  In that context, allowing them to the option of filing a further amended statement of claim was an indulgence.  Mr Weston argued that the time which the respondents took to file a further amended statement of claim was not really just 22 days but really 31 days (given that the respondents in the end conceded the appeal when it was heard on

6 July 2005).

[8]      There is plainly no prejudice to the appellants if we grant leave as sought by the respondents.  There is, however, the possibility of prejudice to the respondents if leave is not granted, particularly if it later be held that the limitation period started to run between 18 August 2001 and today.   For those reasons, we are prepared to extend time as requested.

[9]      Mr Weston sought costs.   This was opposed by Mr Stewart QC for the respondents.    The  reality is  that  the  respondents  were  guilty  of  delay  and  this occurred  in  a  context  in  which  it  was  almost  inevitable  that  there  would  be opposition to the application for an extension and which, in any event, was going to result in the appellants incurring costs.  We therefore order the respondents to pay costs of $1,500 and usual disbursements.

Solicitors:

Buddle Findlay, Christchurch for Appellants

Govett Quilliam, New Plymouth for Respondents