MIAH v THE PARK HOMES LIMITED [2023] NZCA 47

MIAH v THE PARK HOMES LIMITED [2023] NZCA 47 [8 March 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA323/2022[2023] NZCA 47BETWEEN ABDUR RAHIM MIAHAppellantAND THE PARK HOMES LIMITEDRespondentCourt: Courtney and Goddard JJCounsel: No appearance for AppellantR J Thompson for RespondentJudgment:(On the papers)8 March 2023 at 11.30 amJUDGMENT OF THE COURTA The appeal is struck out.B The appellant must pay costs to the respondent for a standard appeal on aband A basis.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] Mr Miah appeals to this Court from a decision of the High Court enteringsummary judgment against him for breach of a GST warranty in an agreement for saleand purchase.1 The appeal has been set down for a half-day hearing before aDivisional Court on Wednesday 22 March 2023.1 The Park Homes Limited v Miah [2022] NZHC 1352.[2] In December 2022 Mr Miah's lawyer filed a memorandum seeking leave towithdraw, as he had been unable to obtain instructions from Mr Miah. The lawyerunderstood 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 thelawyer's application. Mr Miah's lawyer was directed to take steps to advise Mr Miahof the telephone conference, and invite him to participate in it. However Mr Miah didnot respond to any communications about the telephone conference, and did notparticipate in it.[4] By minute dated 8 February 2023 leave was granted to the lawyer to withdrawas 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 beingprovided 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 onWednesday 15 February 2023. The minute of 8 February 2023 gave notice to Mr Miahthat if his submissions were not filed in accordance with the timetable, this Courtwould consider making an order under r 44A of the Court of Appeal (Civil) Rules 2005striking out his appeal for non-compliance with the timetable and failure to prosecutethe appeal diligently.[6] Mr Miah has not filed submissions as required by the timetable. He has notcontacted the Court or taken any other steps to progress his appeal. He has not soughtan adjournment of the fixture.[7] In these circumstances it is not appropriate for the respondent to be required toprepare submissions on the merits of the appeal. Nor is it appropriate for the Court tocontinue to set time aside to hear the appeal, if it is not being diligently pursued. TheCourt's hearing time is under considerable pressure: the time allocated for hearing thisappeal should be made available for other matters. An adjournment is not appropriatein circumstances where none has been sought, and no good reason has been identifiedfor 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 Miahhas not complied with the Court's timetable order, and has failed to prosecute hisappeal diligently.[9] The respondent is entitled to costs for steps taken to date for a standard appealon 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 aband A basis.Solicitors:Vallant Hooker & Partners, Auckland for AppellantForest Harrison Lawyers, Auckland for Respondent