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

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

REASONS OF THE COURT

(Given by Collins J)
Introduction
[1]	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.  
[2]	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.  
[3]	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
[4]	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
[5]	In Almond v Read, 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.
[6]	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”.  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”.
Analysis
[7]	Applying the criteria in Almond v Read, we are satisfied:
(a)	that the delay in this case is not particularly egregious and is in all likelihood due to Mr Ward’s lack of familiarity with the Rules;
(b)	there does not appear to be anything about the way the parties have conducted themselves which has any meaningful impact upon our decision;
(c)	the prejudice to Mr Lochore is that if the application is granted he will incur further delays in being paid his costs; and
(d)	there is nothing significant in the issues raised by the appeal.
[8]	This is one of those rare cases identified by the Supreme Court in which the lack of merits to Mr Ward’s appeal determine his application for an extension of time.  
[9]	There are three aspects to Mr Ward’s appeal that create insurmountable barriers for him:
(a)	The High Court’s costs regime is prescribed by the High Court Rules 2016.  Those rules are underpinned by the “general principles” that the unsuccessful party shall pay costs to the successful party and that the rules provide a predictable, consistent and expedient method of determining costs.
(b)	The Supreme Court has explained that it is a “primary rule” that a lay litigant in New Zealand is not entitled to recover costs against an unsuccessful party.  While the Supreme Court left open the issue as to whether or not it is possible for the primary rule to be departed from in exceptional circumstances, the longstanding practice in New Zealand is that successful lay litigants are not entitled to costs.
(c)	A costs decision involves the exercise of judicial discretion.  Accordingly, an appellate court should not interfere with a costs order unless satisfied the Judge acted on a wrong principle, failed to take into account some relevant consideration, took into account an irrelevant consideration or was plainly wrong.
[10]	The converse position of the primary rule, which we have summarised at [9(b)] is that there is no reason in principle why costs should not be ordered against an unsuccessful lay litigant provided all relevant considerations are taken into account before the court makes such an award.  It is also important for the courts to refrain from punishing an unsuccessful lay litigant solely on the basis that they have elected not to have legal representation.
[11]	In the present case, Katz J, after having concluded that Mr Ward’s causes of action against Mr Lochore were “untenable”, took the entirely orthodox step of awarding costs and disbursements in favour of Mr Lochore.  
[12]	There is nothing discriminatory in the costs order made by Katz J.  Nor is there any basis for Mr Ward’s complaint that the “primary rule” concerning costs somehow undermines the principle of equity before the law.  Had Mr Ward engaged counsel and succeeded in the High Court, he would have been entitled to costs.  The fact he chose to not be represented and lost does not mean that he was treated unfairly or that the costs regime creates inequality before the law.
[13]	Mr Ward cannot point to any basis for suggesting that Katz J acted on a wrong principle, that she took into account an irrelevant factor, failed to take into account a relevant factor or that her judgment was plainly wrong.  In these circumstances we are satisfied Mr Ward’s appeal cannot possibly succeed.  It is therefore appropriate that his appeal be brought to an end.
Result
[14]	The application for an extension of time under r 29A is declined.
[15]	Mr Lochore is entitled to costs in this Court for a standard application on a band A basis.