Quality Machining Limited v C W Drilling and Investigation Limited DC Nelson CIV-2012-042-302 [2012] NZDC 1964 (23 November 2012)

Last Updated: 27 September 2016

IN THE DISTRICT COURT AT NELSON

_{CIV-2012-042-000302}

BETWEEN QUALITY MACHINING LIMITED Appellant

AND C W DRILLING & INVESTIGATION LIMITED

Respondent

Hearing: 23 November 2012

Appearances: D E Holloway for the Appellant

V J Hall for the Respondent

Judgment: 23 November 2012

_{ORAL JUDGMENT OF JUDGE A A ZOHRAB}

[1] The plaintiff in this matter failed to comply with timeframes set out in the District Courts Rules 2009 and, as a consequence, the defendant made application for judgment on its counterclaim. The application was filed with the District Court but, before the registrar could action the matter, an application has been filed for leave to extend time for filing of the plaintiff’s information capsule and for filing a response to the counterclaim. That application is opposed by the defendant.

[2] It is probably useful at this point to summarise the basis upon which the application is opposed because there has been a clear failure to comply with the District Courts Rules. The opposition is based on the fact that the plaintiff failed to comply with rr 2.1, 4.1 and 2.27.3(a) in that the plaintiff failed to serve the relevant documents on the defendant within 20 working days of service of the defendant’s documents. As a consequence, pursuant to r 2.14.4, it is contended that the

_{plaintiff’s claim has come to an end.}

QUALITY MACHINING LIMITED v C W DRILLING & INVESTIGATION LIMITED DC NEL CIV-2012-

042-000302 [23 November 2012]

[3] The plaintiff is now permitted to file a new notice of claim in respect of the same substantive matter, if they want to do so, and accordingly there is no prejudice suffered if the Court elects not to extend the time for filing of the relevant documents. However, pursuant to r 2.12.5, the defendant is entitled to proceed to judgment pursuant to r 2.39 and that is the application which is before the Court.

[4] The defendant contends that the plaintiff, if it decides to do so, may file an application to set aside both of the judgments by default and, as a consequence, they would not have suffered any prejudice if the Court elects not to extend the time for filing of the relevant documents. It is also contended that there is an entitlement to costs, given that the plaintiff has failed to comply with the Rules. It is also contended that the application filed by the plaintiff fails to set out about a reason or explanation which justifies a departure or dispensation of the established Rules of the Court and it is in the interests of justice that the matter be resolved in the manner contended by the defendant.

[5] As far as the plaintiff is concerned, Mr Body in his affidavit confirms that the matters arise from a fairly recent dispute between the parties. He had received a copy of the counterclaim filed in response by the defendant to the proceedings. He is based in Greymouth, his lawyer is in Nelson. He was unable to arrange and meet within a sufficient timeframe and accordingly the timeframe for filing was missed by just over a week. He has confirmed in his affidavit that he wishes to continue the claim and he seeks leave to file the documentation which is all now complete, signed by him, and ready to file, and the documents have been filed contemporaneously with the filing of the documents filed in support of the application, subject obviously to leave being granted.

[6] There has been clear failure by the plaintiff to follow the timeframes set out in the District Courts Rules. There are some competing District Court decisions about what the Court should do in terms of expiry of time periods in this situation. The issue arises, can the power under r 1.18 of the Rules be used to extend time limits after their expiry where the expiry of that time limit ostensibly brought the proceeding to an end.

[7] In a decision of mine from 25 June of 2010, St Leger Group Limited v Lau & Ors DC Nelson CIV-2009-042-585, 25 June 2010, I formed the view that, once a time period had expired, that the proceedings were discontinued. My rationale was that r 1.18 could not apply to extended time periods as, upon expiry, there will no longer be proceedings to which the rule can be applied. There was also a similar decision in the District Court, Commissioner of Inland Revenue v Scoles [2012] DCR

12 (DC) which favoured that limited interpretation as well.

[8] However, there was a subsequent decision, Radich v O’Neill [2012] DCR 168 (DC) from 2 September 2011, that adopted a different approach and rejected the approach that I had adopted, and that it held that it is better to treat r 1.18 as having general application. I understand also that the rules committee is currently considering a number of amendments to the District Courts Rules including the different approaches that have been adopted by the District Court, the approach that I adopted in the St Leger Group case and also the approach adopted by Judge Kellar in the Radich case.

[9] Basically in his decision, in Radich, he adopted what could be characterised, I guess, as an enactment-wide interpretative approach and my view is that his approach is the correct approach, more especially when one considers the District Courts Rules on an holistic basis and when one considers the reasoning that Judge Kellar has set out in the Radich decision. So in my view there is, notwithstanding the plain meaning or plain words of the rule, there is a power to grant the application to extend time. However, the plaintiff has failed to comply with the rules so I proceed to work on the following basis. It seems to me farcical to have to put the plaintiff to the test of having to, or the obligation of having to set aside judgment obtained by default on the counterclaim, so I propose to grant the application made by the plaintiff and there will however be costs in favour of the defendant. The sum of $400, in my view, is appropriate because there has been a clear failure to comply with the timeframes.

A A Zohrab

District Court Judge