Cudby and Meade Limited v New Zealand Furniture Manufacturing and Associated Workers' Union Incorporated [2017] NZCA 15 (21 February 2017)

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Cudby and Meade Limited v New Zealand Furniture Manufacturing and Associated Workers' Union Incorporated [2017] NZCA 15 (21 February 2017)

Last Updated: 2 March 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA219/2016 [2017] NZCA 15
BETWEEN	CUDBY AND MEADE LIMITED Applicant
AND	NEW ZEALAND FURNITURE MANUFACTURING AND ASSOCIATED WORKERSʼ UNION INCORPORATED First Respondent DAVID STEVENS Second Respondent

Court:	Winkelmann, Asher and Brown JJ
Counsel:	Applicant in person D G Dewar for Second Respondent
Judgment: (On the papers)	21 February 2017 at 3.30 pm

JUDGMENT OF THE COURT

The applicant must pay the second respondent costs as for a standard application for leave to appeal on a band A basis for 0.6 days.
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REASONS OF THE COURT

(Given by Brown J)

[1] On 13 May 2016 the applicant filed an application for an extension of time to file an application for leave to appeal from a decision of the Employment Court

dated 14 November 2014.^[1] The decision of the Employment Court had declined the applicant’s application for leave to appeal out of time against a determination of the Employment Relations Authority dated 18 March 2013.^[2]

[2] The application was filed in reliance on r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules). However, being an application for an extension of time to file an application for leave to appeal, the application should have invoked r 5(2).
[3] On 13 October 2016 the applicant advised the Court of its intention to withdraw its application and requested that costs lie where they fall. The second respondent seeks an order for costs on the abandonment of the application which is resisted by the applicant.
[4] The second respondent submits that he was required to review, consider and respond to the application for an extension of time, file two memoranda, attend to correspondence, have interactions with the Court and review material provided by Mr Memelink, the applicant’s representative. A costs award calculated on the basis of 1.5 days at “scale 2B” is sought.
[5] On 13 July 2016 the second respondent filed a memorandum in opposition to the application which addressed the various factors which are relevant to the consideration of an application for an extension of time.
[6] On 18 July Harrison J released a minute noting that the application suffered from a number of serious defects and allowing the applicant until 8 August 2016 to rectify them.
[7] On 9 August a memorandum was filed by Mr Memelink by way of response to the minute of 18 July. A second memorandum was then filed on behalf of the second respondent addressing the contents of Mr Memelink’s memorandum on 15 August.
[8] Harrison J then issued a direction providing the applicant with a final extension of time to comply with the Rules by 4.00 pm on 1 September 2016. No further communication having been received from the applicant, on 27 September Harrison J directed that the application be determined by a panel of the Court on the papers. The notification of abandonment of the application for an extension of time followed.
[9] The general principle is that costs follow the event. Rule 26A(3) of the Rules states that the abandonment of an application does not affect the power of the Court to make an order as to costs in respect of the application. The second respondent is therefore entitled to an order for costs against the applicant.
[10] Schedule 2 of the Rules specifies time allocations with reference to costs on applications for leave to appeal. Those time allocations also apply to applications to extend time not made under r 29A.
[11] We consider that the second respondent is entitled to costs per step 3 of sch 2 (preparation of memorandum of opposition to commencement of application for leave to appeal) in respect of each of his memoranda of 13 July, 15 August and 20 October 2016 on a band A basis. We do not consider that this is a case that qualifies as band B. Therefore, the applicant must pay the second respondent costs as for a standard application for leave to appeal on a band A basis for 0.6 days.

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Second Respondent

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^[1] Cudby and Meade Limited v The New Zealand Furniture and Manufacturers and Associated Workers’ Union Incorporated [2014] NZEmpC 212.

^[2] New Zealand Furniture Manufacturing & Associated Workers’ Union Inc v Cudby & Meade Limited [2013] NZERA Wellington 27.