RPNZ Limited v Real Estate Institute of New Zealand Incorporated CA227/05 [2005] NZCA 423 (19 December 2005)

Last Updated: 23 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA227/05

BETWEEN RPNZ LIMITED Applicant

AND THE REAL ESTATE INSTITUTE OF NEW ZEALAND INCORPORATED Respondent

Hearing: 12 December 2005

Court: Anderson P, Robertson and William Young JJ Counsel: R A Dobson QC and P J Andrews for Applicant

D R Bigio for Respondent

Judgment: 19 December 2005

_{JUDGMENT OF THE COURT}

A Special leave to appeal is granted by way of extension of time.

2. Costs awarded against the applicant of $500 together with usual disbursements.

REASONS

(Given by Anderson P)

[1] On 15 September 2005 Harrison J, in the High Court at Auckland, delivered a judgment against the applicant on a claim it had brought against the respondent. On

13 October 2005 the applicant instructed its solicitors to appeal against the

_{High Court’s decision. The solicitors prepared a notice of appeal and sent it to the}

RPNZ LIMITED V THE REAL ESTATE INSTITUTE OF NEW ZEALAND INCORPORATED CA CA227/05

19 December 2005

registry of this Court for filing. The following morning a copy of the notice of appeal was served on the respondent.

[2] The applicant was entitled to appeal as of right although, by virtue of r 29(1)

of the Court of Appeal (Civil) Rules 2005, it had to bring its appeal within

20 working days after the date on which Harrison J delivered his decision. The 20th working day expired on 13 October 2005 and the appeal was not brought within the stipulated period. That is because, by virtue of r 31(b) a copy of the notice of appeal had to be served on the respondent before the appeal could be regarded as brought. As indicated above the applicant served the respondent on the day following the expiry of the requisite 20 working days. This Court now has to determine an application for special leave to appeal out of time, pursuant to r 29(4).

[3] The respondent opposes the grant of special leave, notwithstanding that it was served with a copy of the notice of appeal within hours of the expiry of

20 working days and notwithstanding that it can point to no prejudice arising from the fact of that minimal delay. Nor does the respondent take issue with evidence that the late service on the respondent was the result of a solicitor’s error in computing the expiry date of time for appealing.

[4] The respondent’s opposition to the grant of leave is based on a view that the appeal is without merit and although bound to fail would nevertheless subject the respondent to further litigation expense and delayed finality in the resolution of the dispute between the parties.

[5] Because we intend to grant special leave we think it inappropriate to discuss, other than cursorily, the nature of that dispute and the merits of the arguments. But, to put the matter briefly, the dispute arises from arrangements made between the parties for the development of a computer database combining data from each of them for commercial use by real estate agents, valuers and similarly interested persons. The parties prepared documents to record their objectives and regulate their relationship. One of these, described as a “Decision paper” contained a proposal for future work on the product. The respondent approved the plan “...subject however to...approval of the contract.” The central issue at trial was whether that reservation

defeated the applicant’s claim that the respondent was bound to the plan either in contract or by estoppel. Harrison J found that the respondent was not bound, that the reservation prevented the parties becoming bound until there should be an approval of contract, and that there was no estoppel.

[6] The applicant wishes to submit on an appeal that the Judge wrongly failed to have regard to the contextual arrangements existing between the parties at the time the respondent indicated approval, that such context ought properly to be taken into account and were that course followed the applicant would be entitled to succeed on the appeal. The respondent’s position is that the Judge’s approach was correct and is unassailable.

[7] Where an appeal has not been brought within time in consequence of a mistake or oversight on the part of an intending appellant’s solicitors, the fact of solicitor error has influenced the Court towards exercising its discretion in favour of granting leave, especially in the absence of significant prejudice to the other party. This is indicated by a number of cases of which Grey v Elders Pastoral Holdings Ltd [1999] NZCA 143; (1999) 13 PRNZ 353 is often cited. But leave will not be granted if an appeal appears to be hopeless. See Prudential & Investment Society of Canterbury (In liq) v Hankins (1991) 5 PRNZ 160 at 162.

[8] The present case cannot be categorised as hopeless. It has seriously arguable points. The time by which the appeal exceeded the allowable 20 working days was but part of a day, was occasioned by a mere arithmetical error on the part of the applicant’s solicitor and has caused no prejudice. The application for special leave was brought promptly after the error was discovered and, in any event, within days of the expiry of the 20 working days. The interests of justice plainly require that leave be granted.

[9] Mr Bigio argued on behalf of the respondent that if leave were granted the respondent should nevertheless be awarded costs because it was only in filing its submissions that the applicant provided any detail of the points which would be pursued on appeal. We note, however, that the applicant’s written submissions were

dated 17 November 2005. They were filed in this Court on that date and would have been in the hands of the respondent’s legal advisers around about that same time.

[10] Whilst the respondent would necessarily have incurred costs in seeking and obtaining advice as to whether it should or should not oppose a grant of leave, we think that after it had received the applicant’s submission its continuing opposition was unjustified. In those circumstances we are prepared to make only a modest award of costs.

[11] The respondent sought an order that the applicant pay its own costs on appeal regardless of the outcome of the appeal. There is no justification for attaching such a condition to the grant of special leave in the circumstances.

[12] In the result, special leave to appeal is granted by way of an extension of time from 13 October 2005 to 14 October 2005. There will be an order for costs against the applicant in the sum of $500 together with the usual disbursements.

Solicitors:

Kensington Swan, Wellington for Applicant

Ellis Gould, Auckland for Respondent