Harrington v Wilding [2019] NZCA 283 (4 July 2019)

Last Updated: 26 July 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA412/2018 [2019] NZCA 283

	BETWEEN	JONATHAN OWEN HARRINGTON Appellant
	AND	TIMOTHY WILDING Respondent

Counsel:	I G Hunt and C Light for Appellant P J Dale QC for Respondent
Judgment: (On the papers)	4 July 2019 at 3.00 pm

JUDGMENT OF BROWN J
(Costs)

A The respondent’s application for costs is declined.

2. The respondent must pay the appellant $750.00 for costs.

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REASONS

Introduction

[1] The respondent (Mr Wilding) applies for costs in relation to the application by the appellant (Mr Harrington) for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules). The application was initially opposed but subsequently consented to.

Background

[2] As Davidson J observed in the judgment under appeal:^[1]

The proceedings have a long and complex history and the main hearing occupied 32 days in two bands in 2016. It was preceded by related proceedings and judgments, then a residual but still substantive phase through to March 2017.

[3] The judgment under appeal is a costs judgment of 223 paragraphs in length consequent upon the delivery of an Interim Judgment on 5 April 2017^[2] and Reasons for Interim Judgment on 12 April 2017.^[3] Davidson J awarded costs against Mr Wilding in favour of Mr Harrington in the sum of $103,500 costs and $27,500 disbursements. The Judge also ordered Mr Wilding to pay to the second, fourth and fifth defendants $201,000 costs and $30,000 disbursements.
[4] On 20 July 2018 Mr Harrington filed a notice of appeal challenging the adequacy of that award in his favour. On 31 July 2018 Mr Wilding filed a notice of crossappeal in which he sought an order setting aside the costs order in Mr Harrington’s favour, an award of costs to Mr Wilding and a direction that Mr Harrington pay the costs awarded in favour of the second, fourth and fifth defendants in the sum of $201,000 plus disbursements of $30,000.
[5] Mr Harrington failed to apply for the allocation of a hearing date and to file the case on appeal within the three month period required by r 43(1) of the Rules. His appeal was subsequently deemed abandoned on 24 October 2018. On 14 November 2018 he filed an application for an extension of time under r 43(2) including in the grounds that the failure was because his solicitors failed to prepare the voluminous case on appeal in sufficient time, that the appeal had good prospects of success and that no specific prejudice to Mr Wilding had arisen as a consequence of the delay. The application was supported by affidavits of Mr Harrington and of an associate in the firm of solicitors representing him.
[6] On 15 November 2018 Mr Wilding filed a notice of opposition to the application for an extension of time together with his affidavit.
[7] On 11 December 2018 Mr Harrington filed two affidavits in reply to the Mr Wilding’s affidavit, namely an affidavit of Mr Harrington sworn on 6 December 2018 and an affidavit of Mr Light sworn on 7 December 2018.
[8] The application for an extension of time was allocated an oral hearing in this Court’s Miscellaneous Motions list for 29 April 2019. The Registrar directed that Mr Harrington’s submissions be filed by 20 March 2019 and Mr Wilding’s submissions by 10 April 2019. Mr Harrington’s submissions were filed on 19 March 2019 but Mr Wilding’s submissions were not filed. However on 11 April 2019 the parties filed a joint memorandum seeking orders by consent. The memorandum stated:

The parties have now agreed to the proposed orders set out below being moved by consent. This will enable the appeal to be brought on for hearing as soon as possible.

[9] The orders sought included an order granting an extension of time for Mr Harrington to file a case on appeal and apply for the allocation of a hearing date. However the memorandum also stated:

The parties have exchanged correspondence regarding, but have been unable to agree, costs in respect of Mr Harrington’s application.

They therefore proposed that memoranda as to costs be filed.

[10] In a minute dated 29 April 2019 an order was made by consent granting an extension of time until 11 June 2019 for the filing of the case on appeal and for application for the allocation of a hearing date. A timetable was made for the filing of submissions on costs.

Mr Wilding’s costs claim

[11] Costs are sought by Mr Wilding in the total sum of $6,700 plus GST comprised as follows:

• $2,700 for wasted costs;
• $2,500 in respect of the notice of opposition and affidavit in support; and
• $1,500 in respect of the preparation of submissions in support of the costs claim.

[12] Having read Mr Harrington’s submissions in response (which sought scale costs in the sum of $1,115 in respect of Mr Wilding’s costs application) Mr Wilding revised the third component to $2,230.
[13] The wasted costs claim relates to an application for costs which Mr Wilding made after Mr Harrington’s appeal was deemed abandoned on 24 October 2018. So far as concerns the costs on the opposition, Mr Wilding relies on this Court’s decision in Board of Governors of Wesley College v Richardson where an application for an extension was granted over opposition.^[4] Mr Wilding drew attention to the fact that the appellant there was ordered to pay costs in any event because the grant of leave was an indulgence to the appellant. The submission was made for Mr Wilding that his position was stronger because he had withdrawn his opposition. Mr Wilding also noted that he was not asked if he would consent to an extension of time.

Mr Harrington’s opposition

[14] Mr Harrington submitted that Mr Wilding’s opposition to the extension of time application had been based on the following factors:

• Mr Harrington’s solicitors made a conscious decision to allow the appeal to lapse.
• Mr Harrington’s solicitors did not take steps during the three month period following the lodging of the appeal.
• Mr Harrington’s solicitors delayed lodging the application for an extension of time until 12 November 2018.
• Although Mr Light was asked in mid September 2018 to start preparing the case on appeal, the first actual steps were not taken until 16 October 2018.
• No explanation was given for Mr Harrington’s failure to pay security for costs.
• The appeal has little or no prospects of success.
• Mr Wilding was prejudiced by the ongoing delay in respect of the proceeding.

[15] Mr Harrington submitted that none of those reasons would have succeeded in countering the central issue in the application for an extension of time, namely that the reason for the failure to comply with the time period was principally due to genuine counsel error which Mr Harrington had no part in.
[16] A secondary reason was that the case on appeal is extensive and a decision was made by Mr Harrington’s counsel that the application for an extension should be deferred until after the expiry of the three month period because of a desire to provide the Court with an accurate estimate of the further time required to prepare and file the case on appeal.
[17] Mr Harrington rejected the inference that Mr Wilding would have consented to an extension if he had been asked.

Discussion

[18] The submissions for Mr Wilding recited the factors identified in this Court’s decision in Wardell v ASB Bank Ltd relating to applications for leave to appeal out of time under r 29A of the Rules.^[5] It was submitted that delay attributable to a solicitor’s error is only one factor to be weighed and that in totality the various factors in this case meant that the grounds of opposition were not “flimsy”, a word which he noted was used by this Court in My Noodle Ltd v Queenstown Lakes District Council.^[6]
[19] However in my view the recent judgment of the Supreme Court in Almond v Read signals that an extension should be granted where delay has been occasioned by an error or miscalculation on the part of a legal adviser, the delay is not substantial and no prejudice results for the respondent.^[7] I do not consider that there was significant merit to Mr Wilding’s opposition to the extension application which, in view of the Almond v Read approach, would very likely have been granted.
[20] In any event Mr Wilding’s argument is misconceived because ultimately he withdrew his opposition and consented to the application. He appears to view that as a factor which supports his application for costs, reasoning that his consent has resulted in a significant saving of costs for both sides. However the only reason why costs were incurred at all was as a consequence of his opposition. I do not draw the inference from his statement that his consent was not sought that he would have not opposed the application for extension if the question had been asked.
[21] Nor do I consider there is justification for his claim for wasted costs. His application for costs was made, as his submission put it “after waiting for nearly two weeks”. It was open to Mr Harrington to apply for an extension within the three month period following the deemed abandonment in r 43. I consider that the application for costs on the abandonment was precipitate. In any event I do not consider that such work as may have been undertaken following the filing and service of the notice of appeal need be wasted given that the appeal is now back on foot.
[22] Mr Harrington made an offer of costs of $750 which Mr Wilding’s submissions described as derisory. However I consider that that was a reasonable offer in the circumstances.
[23] In addressing the issue of costs in My Noodle Ltd this Court said:^[8]

[29] The applicants have been successful in their application. Despite the fact that they were seeking an indulgence from the Court, we think it right to award them costs. It should have been clear to the respondents that, in the circumstances of this case and for the reasons given, an extension of time would be granted. Both time and resources would have been saved had they consented to an extension of time. Rule 53G(2) and (6) apply. This Court recently signalled that costs may be awarded against parties who oppose applications on flimsy grounds, regardless of whether or not the opposing party is seeking an indulgence: PAE (NZ) Ltd v Brosnahan [2009] NZCA 105; (2009) 19 PRNZ 496 (CA), at para 12.

[24] I consider that the present case is similar. The application for an extension of time should not have been opposed. Fortunately Mr Wilding had second thoughts about that opposition. If the issue of the extension application had concluded at that point I would have directed that costs lay where they fell. However significant time and cost has since been expended debating a claim for costs with respect to an application which was ultimately consented to.
[25] Mr Harrington has been successful in resisting that claim for costs. Consequently he is entitled to costs which I award in the sum of $750.00.

Result

[26] The respondent’s application for costs is declined.
[27] The respondent must pay the appellant $750.00 for costs.

Solicitors:
Young Hunter, Christchurch for Appellant
Ewart & Ewart, Auckland for Respondent

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^[1] Wilding v Te Mania Livestock Ltd [2018] NZHC 1506 at [2].

^[2] Wilding v Te Mania Livestock Ltd [2017] NZHC 649.

^[3] Wilding v Te Mania Livestock Ltd [2017] NZHC 717, [2018] NZCCLR 3.

^[4] Board of Governors of Wesley College v Richardson [2000] NZCA 88; (2000) 15 PRNZ 490 (CA).

^[5] Wardell v ASB Bank Ltd [2015] NZCA 344.

^[6] My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [29].

^[7] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

^[8] My Noodle Ltd v Queenstown Lakes District Council, above n 6.