WISLANG v WHITE ISLAND TOURS LIMITED [2022] NZCA 126

WISLANG v WHITE ISLAND TOURS LIMITED [2022] NZCA 126 [12 April 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA351/2021[2022] NZCA 126BETWEEN MILES ROGER WISLANGAppellantAND WHITE ISLAND TOURS LIMITEDRespondentCourt: Cooper and Brown JJCounsel: Appellant in PersonG R Nicholson and R A Idoine for RespondentJudgment:(On the papers)12 April 2022 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time is dismissed.B The appellant must pay costs to the respondent for a standard interlocutoryapplication on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] On 11 June 2021 the appellant, Dr Wislang, was adjudicated bankrupt on theapplication of the respondent (WIT).1 He filed a notice of appeal in this Court on15 June 2021. However he failed to file a case on appeal or apply for a hearing date1 White Island Tours Ltd v Wislang [2021] NZHC 1386 [Bankruptcy judgment].within three months and consequently his appeal was treated as abandoned under r 43of the Court of Appeal (Civil) Rules 2005.[2] On 6 October 2021 he filed the application for an extension of time forcompliance with r 43, the subject of this decision. WIT opposes the application.Relevant background[3] Dr Wislang commenced judicial review proceedings against theAttorney-General, WIT and WorkSafe New Zealand claiming that the White Islandtragedy on 9 December 2019 would not have occurred had WIT been regulated in themanner Dr Wislang suggested. On 31 August 2020 part way through the hearing inthe Wellington High Court he abandoned his claim against WIT but continued withhis claims against the other respondents. His claims were dismissed in a judgmentdelivered on 1 October 2020.2[4] Following the dismissal of the proceeding orders for costs were made in favourof all three respondents.3 WIT was awarded costs on a 2B basis with a 50 per centuplift.[5] On 22 December 2020 WIT made demand on Dr Wislang for payment of thecosts order. In the absence of payment or a response WIT served a bankruptcy noticeon Dr Wislang on 11 February 2021. Dr Wislang's failure to comply with that noticeconstituted an act of bankruptcy.4[6] On 10 March 2021 the respondent served on Dr Wislang an application for anadjudication order.5 On 22 April 2021 Dr Wislang filed in this Court an applicationfor an extension of time to appeal against the costs order (CA225/2021).That application has not been determined.2 Wislang v Attorney-General [2020] NZHC 2588 [Judicial review].3 Wislang v Attorney-General [2020] NZHC 3172 [Costs judgment].4 Bankruptcy judgment, above n 1, at [8]–[10].5 At [12].Relevant principles[7] The principles applicable to applications for an extension of time under r 43are the same as those explained by the Supreme Court in Almond v Read in relation tor 29A.6 The ultimate question when considering the exercise of a discretion is whatthe interests of justice require. Factors identified as likely to require considerationinclude:7(a) the length of the delay;(b) the reasons for the delay;(c) the conduct of the parties, particularly of the applicant;(d) any prejudice or hardship to the respondent or to others witha legitimate interest in the outcome; and(e) the significance of the issues raised by the proposed appeal, both to theparties and more generally.[8] While the Court recognised that the merits of a proposed appeal may, inprinciple, be relevant to the exercise of the discretion to extend time, a decision torefuse an extension of time based substantially on that ground should be made onlywhere the appeal is clearly hopeless. The lack of merit must be readily apparent.8Discussion[9] The period between the date when the appeal was treated as abandoned(16 September 2021) and the date of filing of the application for an extension(6 October 2021) was short. However WIT submits that the appeal is not genuinelyarguable and is without merit and the application for an extension should consequentlybe declined.6 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 see Yarrow Westpac New Zealand Ltd [2018]NZCA 601 at [4].7 Almond v Read, above n 6, at [38].8 At [39(c)].[10] Dr Wislang's appeal against the adjudication order is based on two grounds.1. [The Judge] [f]ailed to take sufficient account of the fact that before thisCourt there is an application for extension of time to appeal the costs orderof Grice J in the judicial review proceedings CIV-2020-485-6 in respectof all three respondents, including [WIT], in those proceedings; and2. [The Judge] [f]ailed to properly address and take account of my disputingboth the base and the lifted costs orders made by Grice J in favour of[WIT] who I additionally claimed filed a suspect and inflated invoice insupport of their memorandum as to the costs upon which their petition forhaving me adjudicated bankrupt was based.[11] So far as the first ground is concerned, WIT correctly says that theAssociate Judge did recognise the fact of Dr Wislang's application for an extension oftime to appeal the costs order and that leave to appeal the stay decision had not beengranted.9 The hearing of the former application had been deferred consequent uponthe adjudication of bankruptcy.[12] WIT further submitted that Dr Wislang's complaints about the costs order inits favour could at best have resulted in a reduction of no more than $4,000, againciting from the High Court Bankruptcy judgment:[35] even if Dr Wislang was granted an extension of time to appeal thecosts order and achieved some success, he accepts that WIT was entitled to anaward of costs and all that is in issue is the quantum of the award. There wouldremain a significant sum owing to WIT which Dr Wislang has not and cannotpay immediately. That sum would be sufficient to found WIT's creditor'sapplication.[36] I note at this juncture, I have considered Dr Wislang's latestmemorandum to the Court of Appeal of 8 June 2021. I also discussed thatmemorandum with him at the hearing today. He considers fees charged byWIT's lawyers in the substantive proceeding to be staggering. However, WITwas not awarded costs on an indemnity basis. Even on Dr Wislang's ownassessment, WIT's 2B scale costs and disbursements of the substantiveproceeding total $39,177. With a 50 per cent uplift the total is $58,655.50.There is really little difference between this last figure and the amount WITwas actually awarded of $62,240.50.[13] There does not appear to be any error in that analysis. In any event we considerthat there would be no realistic prospect of the grant of an extension of time to appealthe costs judgment. The application was made on the grounds that it included an award9 Bankruptcy judgment, above n 1, at [34].of indemnity costs which was unjustly excessive and wrongly punitive. Dr Wislangalso suggested that his judicial review proceeding was brought solely in the publicinterest and consequently he should not have been unfairly penalised in costs.[14] However as Grice J recorded, Dr Wislang did not argue that his claim wasbrought in the public interest, such that costs should be reduced, and the Judge held inany event that there was no public interest element involved.10 FurthermoreDr Wislang's assertion that indemnity costs were awarded is not correct. The WITaward was at scale with an uplift to reflect Dr Wislang's failure to accept a Calderbankoffer made at a point where Dr Wislang had already been warned by the Court that hisclaim as pleaded faced difficulties.11 Dr Wislang waited until his oral argument beforeabandoning his claim, giving WIT no opportunity to avoid or mitigate the costs it wasincurring.12[15] We are satisfied that Dr Wislang's appeal brought on the grounds recorded at[10] above has no realistic prospect of success. We note that confronted with thecogent arguments in WIT's detailed memorandum in opposition dated26 October 2021, Dr Wislang took no steps in support of his application. He did notfile submissions. Nor has he responded to communications from the Court.Result[16] The application for an extension of time is dismissed.[17] The appellant must pay costs to the respondent for a standard interlocutoryapplication on a band A basis and usual disbursements.Solicitors:Anthony Harper, Auckland for Respondent10 Costs judgment, above n 3, at [20].11 At [46].12 At [47].