EA v Rennie Cox Lawyers [2020] NZHC 958 (12 May 2020)

Last Updated: 18 May 2020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2580 [2020] NZHC 958

BETWEEN	EA Appellant
AND	RENNIE COX LAWYERS Respondent

Hearing:	4 March 2020
Appearances:	R J Hollyman QC for the appellant S P Bryers for the respondent
Judgment:	12 May 2020

JUDGMENT NO 2 OF PALMER J

This judgment was delivered by me on Tuesday 12 May 2020 at 11.00 am.

Pursuant to Rule 11.5 of the High Court Rules

.............................. Registrar/Deputy Registrar

Counsel/Solicitors:

R J Hollyman QC, Auckland

S P Bryers, Barrister, Auckland Rennie Cox Lawyers, Auckland

EA v RENNIE COX LAWYERS NO 2 [2020] NZHC 958 [12 May 2020]

Judgment and application

[1] On 5 December 2019, I gave judgment in favour of Ms EA in this proceeding.
In summary, I said:¹

[1] Ms EA and Rennie Cox Lawyers had a dispute about legal fees. In March 2012 Rennie Cox filed proceedings in the District Court. They were automatically stayed when Ms EA complained to the New Zealand Law Society about the amount. The complaint was resolved in February 2015. In June 2015 Rennie Cox successfully applied to Judge G M Harrison of the District Court, without notice, for a retrospective extension of time under the District Court Rules 2009 (the Rules) to enter judgment by default. In March 2018, the Court of Appeal held Rennie Cox had inexcusably misled Judge Harrison in doing so and overturned the judgment. Later that month Rennie Cox applied to the District Court for further timetabling directions in the proceeding. Ms EA opposed that on the basis the proceeding was deemed to have been discontinued under the Rules. On 1 November 2018, Judge Harrison, in the North Shore District Court, granted a further extension of time to permit the proceeding to be heard, made timetabling directions and awarded costs to Rennie Cox. Ms EA appeals those decisions.

[2] The proceeding was deemed to have been discontinued under r 2.39 of the Rules, the purpose of which was to put pressure on parties to take action in legal proceedings or risk starting all over again. The limitation period to start a new such proceeding had expired by the time Judge Harrison considered the second extension. I consider the decision to extend the deadline retrospectively was inconsistent with the purpose of the Rules and the purpose of the Limitation Act 2010 and was plainly wrong. Rennie Cox blew their chance to have the deadline extended, in 2015. The interests of justice do not require they get another one. I uphold the appeal.

[2] Now, Rennie Cox applies for leave to appeal my decision to the Court of Appeal. Section 67 of the Judicature Act 1908 governs this application, since it concerns an application for leave to appeal from decisions given in proceedings commenced before 1 March 2017.² But the test is the same as if it were assessed under s 60 of the Senior Courts Act 2016. In determining whether to grant leave to such a second appeal, I must have regard to whether the proposed appeal raises some question of law or fact capable of bona fide and serious argument in a case involving an interest, public or private, of sufficient importance to outweigh the cost and delay of the appeal.³ I am guided by the requirements of the interests of justice.

¹ EA v Rennie Cox Lawyers [2019] NZHC 3191.

2. Senior Courts Act 2016, cl 10(1), Sch 5; Sutcliffe v Tarr [2017] NZCA 350, [2018] 2 NZLR 92 at [16]- [33].

³ Snee v Snee [1999] NZCA 252; [2000] NZFLR 120, (1999) 13 PRNZ 609 (CA) at [15]; Waller v Hider [1998] 1

NZLR 412 (CA) at 413.

Submissions

[3] Mr Bryers, for Rennie Cox, submits:

(a) The judgment holds the stay of proceedings did not have the effect of suspending the running of time for the purpose of the limitation period.⁴ But it is arguable that conflicts with English case law.⁵ So it is appropriately determined by the Court of Appeal.

(b) Ms EA could not claim costs in one context while denying liability for them in another. She elected to accept she had incurred costs, and this gave rise to a fresh cause of action. So she should not be permitted to rely upon a Limitation Act defence. Alternatively, Ms EA impliedly acknowledged a debt in an affidavit which created a fresh claim under s 47 of the Limitation Act 2010. There are conflicts of fact here which require a hearing to resolve.

(c) Although they do not justify an appeal in themselves, Rennie Cox also wishes to argue the issues of whether the proceeding was deemed to have been discontinued and/or whether it was in the interests of justice to permit an extension of time.

(d) The legal issues are of public interest because they concern the effect of the Lawyers and Conveyancers Act 2006, and perhaps other Acts, in relation to limitation periods. They are of substantial private interest in determining the claim for payment for a substantial amount of legal work. It is inherently unjust for a litigant to be denied access to the courts because of procedural issues.

[4] Mr Hollyman QC, for Ms EA, submits none of Rennie Cox’s grounds meet the threshold for leave to appeal and its appeal would be futile because it would not cure Rennie Cox’s application.

⁴ At [24].

⁵ Bell v Gosden [1950] 1 All ER 266.

Decision

[5] The proposed appeal needs to raise a question capable of serious argument, in a case involving public or private interest of sufficient importance to outweigh the cost and delay of the appeal. I do not consider Mr Bryers’ submissions come close to establishing that because:

(a) I did not consider Bell v Gosden to be worth citing in my judgment because, as I observed at the hearing, it has to be read in its context of an emergency moratorium. It is certainly not worth bothering the Court of Appeal with. The Court of Appeal’s position is clear, as I noted in the judgment.⁶ The High Court does not need the assistance of the Court of Appeal to distinguish English precedent.

(b) Mr Bryers’ submissions about fresh claims are not consistent with the Court of Appeal’s previous consideration of the issues.⁷

(c) Mr Bryers himself concedes the other two issues alone do not justify an appeal.

(d) The public interest is best served by enforcing the interests of finality on this litigation, rather than extending it yet again. And the outstanding costs orders against Rennie Cox must be paid forthwith.

[6] I dismiss the application for leave to appeal. I award costs for the application to Ms EA on a 1B basis.



Palmer J

6. At [24], citing Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 (CA), which in turn cited Coburn v Colledge [1897] 1 QB 702 (CA).

⁷ EA v Rennie Cox Lawyers [2018] NZCA 33.