Glaister v Amalgamated Dairies Ltd [2003] NZCA 195; (2003) 16 PRNZ 840 (18 August 2003)

Last Updated: 17 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA99/03

BETWEEN DAVID JOHN GLAISTER, LOMOND MAURICE SEEL AND ROBERT NAREV
Appellants

AND AMALGAMATED DAIRIES LIMITED
First Respondent

AND CHALLENGE INVESTMENT COMPANY LIMITED
Second Respondent

Coram: Keith J Blanchard J Tipping J

Counsel: A F Grant for Appellants
J L Land for Respondents

Judgment (On the papers): 18 August 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] At the request of the parties this application is being determined on the basis of the written submissions of counsel.
[2] The respondents seek leave to bring a cross-appeal out of time. Rule 8(2) of the Court of Appeal (Civil) Rules 1997 provides that, except with the leave of the Court, a notice of cross-appeal may not be filed more than 28 days after the service of the notice of appeal on the respondent. According to the affidavit evidence of the person handling the matter in the office of the respondents’ solicitors, she had received instructions to file a cross-appeal well within the 28 days but by an oversight failed to do so. The present application was made 11 days after the expiry of the 28 days.
[3] Leave under r8(2) for the late filing of a cross-appeal is more readily granted than leave to initiate an appeal out of time. The latter requires, in terms of r5, “special leave”. The former does not, and indeed r8(4) enables the Court, if it thinks fit, to determine a matter which should have been the subject of a cross-appeal notice notwithstanding that no such notice has been given and with or without adjourning the hearing or making a special order as to costs. The more lenient approach to delay in the raising of an issue by way of cross-appeal reflects the fact that the proceeding is already before the Court at the behest of the appellant.
[4] The Court will not, however, grant leave for the bringing of a cross-appeal which has no prospect of success. In our view, that is true of the present respondents’ proposed cross-appeal.
[5] The appellant trustees of the Kelso Trust brought a proceeding concerning the value of certain shares. Judgment was entered in their favour for $2.5 million together with interest. There was a limited postponement of the date from which interest commenced to run. Otherwise the trustees’ claim was entirely successful. Judgment was also entered in their favour on the counterclaims of the respondents. The substantive judgment is reported as Glaister v Amalgamated Dairies Ltd [2003] 1 NZLR 829. There has been no appeal from that decision.
[6] The trustees sought costs against the respondents on a certain basis. The High Court awarded them costs on a lower basis. That decision too has been reported: Glaister v Amalgamated Dairies Ltd (2003) 16 PRNZ 536. The trustees have appealed to this Court against the costs decision.
[7] The subject matter of the proposed cross-appeal is a portion of Heath J’s costs judgment (paras [27] to [29]) in which he declined to reduce the costs he regarded as otherwise payable because of the failure of the trustees to agree to submit the dispute to mediation. The respondents say that if the matter had proceeded to mediation it may well have settled and the costs incurred by the parties would most definitely have been substantially less than those incurred in the High Court and valuable court time would have been saved.
[8] The substantive claim for the $2.5 million – the major issue at trial - could of course have been “settled” by the respondents before trial on the basis adjudged in the High Court without need for any recourse to mediation. All they had to do was to pay the sum claimed leaving disputed questions of interest and costs to be determined by the Court. They chose not to do so and to run the risk of losing at trial on the main issue and having trial costs awarded against them.
[9] What they are now saying, in effect, is that if the trustees had been prepared to mediate there might have been a compromise involving acceptance by the trustees of a lesser sum than was awarded by the Judge. Avoidance of trial by means of the mediation process would thus have come at a financial disadvantage, as matters transpire, for the trustees.
[10] The argument might have some semblance of respectability if the trustees, after rejecting mediation, had recovered significantly less at trial than they had claimed, although even in that event the decision of this Court in Beadle v M & L A Moore Ltd [1998] 3 NZLR 271 might still have stood in the way. However, the argument is bereft of any merit in circumstances in which the trustees’ decision not to mediate has been vindicated.
[11] The application is therefore dismissed with costs to the appellants in the sum of $1,000.

Solicitors:
Glaister Ennor, Auckland for Appellants
Kensington Swan, Auckland for Respondents