IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002158 [2013] NZHC 1390

BETWEEN	M VAN DER WAL BUILDERS & CONTRACTORS LIMITED Appellant

AND	GEOFFREY HANHAM AND ELIZABETH HANHAM Respondents

Hearing:	On the papers

Appearances:	S E McCabe for Appellant
C F Foote for Respondents

Judgment:	12 June 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 12 June 2013 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

VAN DER WAL BUILDERS & CONTRACTORS LTD v HANHAM [2013] NZHC 1390 [12 June 2013]

[1]       M Van Der Wal Builders and Contractors Ltd (Van Der Wal) wishes to appeal a decision of Judge Gittos in the Auckland District Court dated 28 March 2018.  The decision (and the proposed appeal) relates to the Hanhams’ ability to terminate a building contract between them and Van Der Wal.   More specifically, the issue is whether a term can be implied into the standard form Master Builders’ Contract permitting termination on notice, in the absence of default.

[2]       The difficulty is that although the notice of appeal was filed in this Court on the last day of the 20 working day period specified in rule 20.4(2)(b) of the High Court Rules, the other prerequisites to bringing an appeal stipulated in rule 20.6 (namely filing a copy of the notice in the District Court   and service on the respondent) were not met until 3 days after the expiry of that period.  Special leave to extend the time for bringing the appeal is therefore necessary under rule 20.4(3).

[3]       It is Van Der Wal’s application for such special leave that is the subject of this

judgment. The application is opposed.

[4]       As Mr Foote submitted special leave is an indulgence and is not therefore to be granted lightly.  The factors to be taken into account when exercising the Court’s discretion under rule 20.4(3) are well known. They are:1

(a)	When and under what circumstances the decision to appeal was taken; (b)	The extent of the delay;
(c)	Whether the delay is capable of satisfactory explanation;

(d)	Whether prejudice will be suffered by other parties if the time is extended;

(e)	The strength of the appeal;

(f)	Any other relevant circumstances.

1 See for example Juken Nissho Ltd v Attorney General (1998) 12 PRNZ 380 (HC) and Brown v
Chow Mein Fashions Ltd (1993) 7 PRNZ 43 (HC).

[5]       In the present case, I accept that the appeal is genuinely brought and that the delay in bringing it is short.   There is no real or significant prejudice to the respondent, other than perhaps a fleeting hope or expectation that the matter was to go no further (as to which there is no evidence).

[6]       As to the reasons for the delay the legal executive responsible for filing the appeal has deposed as follows:

The  appeal  was  filed  in  the  High  Court  on  29 April  2013,  within  the prescribed period.  A copy of the letter Ms McCabe wrote to the High Court when filing the appeal is attached. … At the bottom of the letter her instructions are to copy the letter and the documents to the respondents and the District Court.

I personally filed the letter, the cheque and the various copies of the Notice of Appeal in the High Court on 29 April 2013.  I expected to be given service copies of the appeal documents by return which would have had the date of the case management conference inserted by the Court.   However when I was  at  the  filing  desk  the  High  Court  advised  me  that  there  was  a tremendous backlog to be processed and that they would post the documents to us for service.

Unfortunately we did not receive the documents in the mail the next day. As a result I did not serve the letter and the appeal documents as they did not have a date of hearing on them.  I thought that I should not serve the other parties until the documents were released as I was unable to notify them of the dates of the case management conference.   I thought that because the high Court was unable to process the documents I could not serve them until the documents were released for service.

[7]       The upshot is that the delay in bringing the appeal was caused by two errors.

[8]       First, the legal executive was mistaken in the views I have quoted above because the rules expressly contemplate that the appellant may advise the conference date to the other parties to the appeal after the appeal has been filed and served: rule
7.14(3).  But that mistake does not appear to me to be obviously egregious or grossly negligent.

[9]       Secondly, it was a mistake to leave the filing of the appeal until the last moment.  That was foolish, but it was folly in which the appellant’s legal advisers have a good deal of company. Again, there is no obviously egregious aspect to it.

[10]     I accept Mr Foote’s submission that the fact that the delay is not the fault of the intended appellant personally is not determinative.  But nor, of course, are any of the factors listed at [4] above.   In the end it is a question of what the interests of justice require.

[11]     In the end I consider that the balance of the matters I have already mentioned weighs marginally in favour of granting the special leave sought.  What, in my view, tips the scales further, and more persuasively, in Van Der Wal’s favour is the subject of the matter of the appeal itself.  In that respect I accept Ms McCabe’s submission that the implication of a term into a standard industry contract is a matter of some wider importance.  Moreover, as the proposed notice of appeal itself makes clear the issues are narrow, and largely legal in nature.   Had (for example) Van Der Wal sought a wide ranging revisitation of the facts of the case in its proposed appeal I would not have been so favourably disposed.

[12]     Accordingly it is my view that special leave should be granted and I do so. The  proceeding  is  to  be  placed  in  the  next  available  Civil  Appeals  List  for timetabling.

[13]     I also agree with Mr Foote, however, that the respondents are entitled to their costs on this application, on a 2B basis.

Rebecca Ellis J