Miah v The Park Homes Limited [2023] NZCA 47 (8 March 2023)

Last Updated: 13 March 2023

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

CA323/2022 [2023] NZCA 47

	BETWEEN	ABDUR RAHIM MIAH Appellant
	AND	THE PARK HOMES LIMITED Respondent

Court:	Courtney and Goddard JJ
Counsel:	No appearance for Appellant R J Thompson for Respondent
Judgment: (On the papers)	8 March 2023 at 11.30 am

JUDGMENT OF THE COURT

1. The appeal is struck out.
2. The appellant must pay costs to the respondent for a standard appeal on a band A basis.

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REASONS OF THE COURT

(Given by Goddard J)

[1] Mr Miah appeals to this Court from a decision of the High Court entering summary judgment against him for breach of a GST warranty in an agreement for sale and purchase.^[1] The appeal has been set down for a half-day hearing before a Divisional Court on Wednesday 22 March 2023.

[2] In December 2022 Mr Miah’s lawyer filed a memorandum seeking leave to withdraw, as he had been unable to obtain instructions from Mr Miah. The lawyer understood that Mr Miah was in Bangladesh. He had made efforts to contact Mr Miah, including through Mr Miah’s son in Australia, but those efforts had been unsuccessful.

[3] A telephone conference was convened on 8 February 2023 to consider the lawyer’s application. Mr Miah’s lawyer was directed to take steps to advise Mr Miah of the telephone conference, and invite him to participate in it. However Mr Miah did not respond to any communications about the telephone conference, and did not participate in it.

[4] By minute dated 8 February 2023 leave was granted to the lawyer to withdraw as counsel. Leave was also granted to his firm to withdraw as solicitors on the record, conditional on an alternative address for service for Mr Miah in New Zealand being provided to the Court. No such address has been provided to date.

[5] Mr Miah’s submissions for the substantive appeal were due to be filed on Wednesday 15 February 2023. The minute of 8 February 2023 gave notice to Mr Miah that if his submissions were not filed in accordance with the timetable, this Court would consider making an order under r 44A of the Court of Appeal (Civil) Rules 2005 striking out his appeal for non-compliance with the timetable and failure to prosecute the appeal diligently.

[6] Mr Miah has not filed submissions as required by the timetable. He has not contacted the Court or taken any other steps to progress his appeal. He has not sought an adjournment of the fixture.

[7] In these circumstances it is not appropriate for the respondent to be required to prepare submissions on the merits of the appeal. Nor is it appropriate for the Court to continue to set time aside to hear the appeal, if it is not being diligently pursued. The Court’s hearing time is under considerable pressure: the time allocated for hearing this appeal should be made available for other matters. An adjournment is not appropriate in circumstances where none has been sought, and no good reason has been identified for adjourning the fixture while keeping the appeal on foot.

[8] The appeal is struck out under r 44A of the Rules on the grounds that Mr Miah has not complied with the Court’s timetable order, and has failed to prosecute his appeal diligently.

[9] The respondent is entitled to costs for steps taken to date for a standard appeal on a band A basis.

Result

[10] The appeal is struck out.

[11] The appellant must pay costs to the respondent for a standard appeal on a band A basis.


Solicitors:
Vallant Hooker & Partners, Auckland for Appellant
Forest Harrison Lawyers, Auckland for Respondent

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^[1] The Park Homes Limited v Miah [2022] NZHC 1352.