THE MINISTER OF EDUCATION V AHEAD BUILDINGS CA CA794/2010

THE MINISTER OF EDUCATION V AHEAD BUILDINGS CA CA794/2010 18 March 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA794/2010[2011] NZCA 81BETWEEN THE MINISTER OF EDUCATIONApplicantAND AHEAD BUILDINGS, AN OPERATINGDIVISION OF ECONICORP HOLDINGSLIMITEDFirst RespondentAND L H T LIMITEDSecond RespondentHearing: 15 March 2011Court: Chambers, Randerson and Wild JJCounsel: M S R Palmer and R B Chan for ApplicantR J Hollyman for First RespondentJudgment: 18 March 2011 at 4:00 PMJUDGMENT OF THE COURTA The application to extend time for appealing from Minister of Education v Ahead Buildings, an operative division of Econicorp Holdings LimitedHC Auckland CIV-2008-404-7268, 21 December 2009 is granted.B The applicant's notice of appeal filed in CA60/2010 is to be accorded anew CA number and treated as the notice of appeal filed pursuant to order A herein. The applicant must, however, pay a further filing fee on the new appeal.C The security for costs paid on CA60/2010 is to be treated as paid on the new appeal as well, with the consequence that it will be available assecurity for the respondents' costs on CA60/2010 and the new appeal.D Costs on CA60/2010 are reserved and are to be resolved, in the absence of agreement, by the panel which hears the new appeal.E The new appeal is to be heard on 11 May 2011 at 10 am, unless the Fixtures Manager advises to the contrary.F No order as to costs on the application to extend time.REASONS OF THE COURT(Given by Chambers J)[1] We have extended time for appealing. We do not give reasons.1 In essence, we accept the reasons advanced by Dr Palmer, for the Minister of Education, the applicant.[2] We do, however, explain order F. Dr Palmer submitted that, if the application to extend time for appealing were granted, there should be no order as to costs. Mr Hollyman, for Ahead Buildings, the first respondent, sought costs in any event. This question is covered by r 53G(2):If the need for an application for leave to appeal arises from a default on theapplicant's part, the respondent will normally be entitled to costs withrespect to the application at the time it is determined, unless the respondent'sopposition to it was in the circumstances unreasonable, in which case there will normally be no order as to costs.[3] By r 53G(6) the expression "an application for leave to appeal" in subcl (2)includes "an application for an extension of time under rule 29A".[4] The thinking behind r 53G(2) is this. A party seeking an indulgence should normally expect to contribute towards the costs of others who have been inconvenienced thereby. A respondent who acts unreasonably should not, however, receive costs. To allow an unreasonable respondent costs would be to encourage perverse behaviour and a waste of court time. If respondents in these circumstances thought they would receive costs whether the application for leave succeeded or1 Court of Appeal (Civil) Rules 2005, rr 29A(5) and 27(2).failed, respondents would be encouraged to oppose regardless. Unnecessary legal costs would be incurred and valuable court time would be spent dealing with contested applications which should obviously succeed. See generally the discussion in My Noodle Ltd v Queenstown Lakes District Council2 and McGechan on Procedure3.[5] The question is here whether Ahead's opposition was in the circumstances unreasonable. We consider it was. The Minister's appeal had clearly been brought in time and in good faith. Security for costs had been paid. The appeal had been pursued with diligence, even to the extent of having a fixture allocated for 11 May this year. What the Minister failed to do, entirely through counsel oversight and through no fault of her own, was file the case on appeal within the stipulated time. This led to the deemed abandonment of the appeal under r 43. When the error was discovered, Crown Law promptly took the necessary remedial action.[6] A reasonable respondent would immediately have consented to the Minister'sapplication to extend time for a new appeal. If such consent had been forthcoming, the whole matter could have been dealt with on the papers under r 29A(2). It was obvious this application would be granted, given that Ahead suffered no prejudice atall as a result of the Minister's counsel's error. The appeal will be able to be heardon the very date everybody assumed the appeal was going to be heard.[7] For these reasons, we make no order as to costs on the application to extend time. We make no comment on what we would have done had the Minister sought costs.4Solicitors:Crown Law Office, Wellington, for ApplicantCockroft d'Young Moorhouse, Auckland, for First Respondent2 My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [29].3 McGechan on Procedure (looseleaf ed, Brookers) at [CA29A.02(5)].4 See further PAE (NZ) Ltd v Brosnahan [2009] NZCA 105, (2009) 19 PRNZ 496 at [12].