Le v Hemu Trade Company Limited [2019] NZCA 52 (14 March 2019)

Last Updated: 22 March 2019

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

CA299/2018 [2019] NZCA 52

	BETWEEN	CHUN MAO LE Applicant
	AND	HEMU TRADE COMPANY LIMITED First Respondent CHIN WEN LI Second Respondent CHING-CHI LI Third Respondent

Hearing:	18 February 2019
Court:	French, Cooper and Gilbert JJ
Counsel:	P F Chambers for Applicant A Manuson for Respondents
Judgment:	14 March 2019 at 12.30 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to file the case on appeal and apply for a hearing date is granted pursuant to r 43(2) of the Court of Appeal (Civil) Rules 2005.
2. The application for an allocation of a hearing date is to be filed together with the case on appeal on or before 15 April 2019.

100. There is no order as to costs.

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REASONS OF THE COURT

(Given by Cooper J)

[1] This is an application for an extension of time to file the case on appeal and apply for a hearing date under r 43 of the Court of Appeal (Civil) Rules 2005. The underlying dispute between the parties concerns ownership of land at Avondale Heights, Auckland. The applicant and the second respondent are registered as tenants in common but in the High Court the first respondent claimed to be the beneficial owner of the property having funded the purchase price. The respondents were largely successful in the High Court and the applicant now seeks to challenge on appeal the key factual determinations of Fitzgerald J.^[1]
[2] The notice of appeal was filed on 6 June 2018. On 20 June, the respondents filed a notice of cross-appeal against the Judge’s findings that the applicant has a nine per cent share of the beneficial interest in the property and that the respondents’ claims for rent must fail.
[3] Although the appeal was filed in time, the applicant did not file a case on appeal and apply for a hearing date within three months of filing the notice of appeal. Consequently, on 10 October 2018, the registrar acting under r 43 advised the applicant that the appeal was deemed abandoned as at 7 September 2018.
[4] The applicant now seeks an extension of time on the ground that the delay was largely attributable to an error by the applicant’s legal advisor. Mr Chambers explained that he mistakenly noted his diary that the necessary application for a hearing date would need to be made three months after the date the crossappeal was filed, whereas the rule applies the threemonth period from the date of the filing of the original appeal. Had the appeal been filed on 20 September, that would have been before the registry confirmed the abandonment of the appeal. In fact, there was a further brief delay, the necessary application for an extension of time not being filed until 11 October 2018. We note that was a day after the registrar formally advised that the appeal was abandoned.
[5] The applicant explains the further delay on the basis that it was necessary to obtain documents from Taiwan (which will be the subject of an application to adduce further evidence at the hearing) which, although relevant in the applicant’s view, had not been discovered by the respondents. That material has been set out in an affidavit and the respondents have filed an affidavit in opposition, which we have read.
[6] The application for an extension of time is opposed on the basis that reasonable steps have not been taken to demonstrate that the applicant is ready to proceed to a hearing if leave is granted. The respondents argue that even if time were needed to obtain further documents, the application for the grant of the extension of time should have been made before expiry of the threemonth period referred to in r 43(1). Further, if the additional documents were truly relevant, there was nothing to prevent them being obtained prior to the hearing in the High Court. They claim the merits of the appeal are weak, being based on errors of fact founded on credibility findings by the High Court.
[7] Although Ms Manuson submitted to the contrary, we were not convinced that there is any real prejudice. An issue she raised was that the applicant remains in occupation of the property without paying rent. However, if there is an entitlement to rent, that is a liability that can be enforced. We do not understand it to be asserted, however, that there would be any prejudice arising in particular from the grant of the extension of time and it is such prejudice that must be taken into account for present purposes.
[8] We are not in a position to resolve the argument about the relevance or significance of the documents which the applicant has evidently sought from Taiwan. For present purposes the significant point is that the obtaining of the documents was sufficient explanation for the small additional delay in making an application for an extension of time beyond the delay which was attributable to counsel’s error. The overall delay is in any event not great and well within the additional threemonth period provided for in r 43(3).
[9] Having had regard to all the relevant considerations, we are satisfied that an extension of time should be granted.
[10] Counsel for the respondents referred to increased security for costs in the event that the present application was successful. If the respondents wish to proceed on that issue they will need to apply for an extension of time to advance such an application with regard to the time limit in r 35(7).

Result

[11] The application for an extension of time to file the case on appeal and apply for a hearing date is granted pursuant to r 43(2) of the Court of Appeal (Civil) Rules.
[12] The application for the allocation of a hearing date is to be filed together with the case on appeal on or before 15 April 2019.
[13] The applicant has succeeded in securing an extension of time, and the respondents’ opposition has been unsuccessful. However, given that the applicant has obtained an indulgence, it is appropriate for costs to lie where they fall. Accordingly, there is no order as to costs.

Solicitors:
Henley-Smith Law, Auckland for Applicant
Prestige Lawyers Ltd, Auckland for Respondents

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^[1] Hemu Trade Co Ltd v Le [2018] NZHC 982.