Fujitsu General New Zealand Ltd v Melco New Zealand Ltd [2001] NZCA 354; (2001) 16 PRNZ 403 (12 October 2001)

Last Updated: 10 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 295/00

	BETWEEN	FUJITSU GENERAL NEW ZEALAND LIMITED
		Applicant

	AND	MELCO NEW ZEALAND LIMITED
		First Respondent

	AND	PETER MIHU
		Second Respondent

	AND	DARRYL MICHAEL ROCHESTER
		Third Respondent

Hearing:	12 October 2001
Coram:	Richardson P Blanchard J McGrath J
Judgment (on the papers):	12 October 2001

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

[1] Fujitsu General New Zealand Limited ("Fujitsu") seeks leave under r5 of the Court of Appeal (Civil) Rules 1997 to bring an appeal after the expiration of 28 days from the perfecting of judgment in the High Court proceeding.
[2] By judgment delivered on 19 December 2000 Goddard J ordered the discharge of Anton Piller orders which had been granted on 21 July 2000. Fujitsu filed a notice of appeal on 21 December and the defendants filed a notice of cross-appeal as to certain other aspects of Goddard J's decision.
[3] It seems it was assumed that time to appeal had already started running on 19 December. Accordingly, when, although certain steps had been taken before the expiry of six months from 19 December but the full requirements of r10 in that regard had not been met, the second and third defendants advised Fujitsu that the appeal was deemed to be abandoned. That led to the filing on 1 August 2001 of an application under r5 for special leave to appeal.
[4] However, it transpires that the judgment of Goddard J was not sealed until 6 July 2001 and in terms of r6 the time for appeal did not expire until 3 August 2001. Technically, what we have before the court is an application filed on 1 August for leave to appeal in a situation where notice of appeal could properly have been given at that time.
[5] In these circumstances, and by consent of the parties, it is appropriate to take the course adopted in Caie v Attorney-General (CA 108/01, judgment 20 September 2001) and recognise the appeal (and cross-appeal) as having been properly brought as at today, without any further filing of documents in this court or the High Court.
[6] The parties can now proceed to meet any further requirements of r10 and set the appeal and cross-appeal down for hearing.

Solicitors
Peter Verboeket and Company, Wellington, for applicant
A J Park, Wellington, for first respondent
Bell Gully, Wellington, for second and third respondents