THIRTY EIGHT MOFFAT LIMITED v AUCKLAND COUNCIL [2022] NZCA 186

THIRTY EIGHT MOFFAT LIMITED v AUCKLAND COUNCIL [2022] NZCA 186 [16 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA710/2021[2022] NZCA 186BETWEEN THIRTY EIGHT MOFFAT LIMITEDAppellantAND AUCKLAND COUNCILFirst RespondentWATERCARE SERVICES LIMITEDSecond RespondentCourt: Gilbert and Collins JJCounsel: G M Illingworth QC and S J Ryan for AppellantPMS McNamara and C J Ryan for RespondentsJudgment:(On the papers)16 May 2022 at 9 amJUDGMENT OF THE COURTA The application for an extension of time to apply for a hearing date isgranted.B We direct the Registrar to allocate a hearing date for this appeal inaccordance with the joint memorandum of counsel dated 29 March 2022.C We make no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] The appellant applies pursuant to r 43(2) of the Court of Appeal (Civil) Rules2005 (the Rules) for an extension of time to apply for the allocation of a hearing date.[2] The appeal is against a judgment of the High Court delivered on 8 November2021 declining to make an order declaring a bylaw invalid.1 The notice of appeal wasfiled on 6 December 2021. Security for costs was paid on 21 January 2022.On 4 March 2022, the appellant applied for a brief extension of time (from 7 March2022 to 28 March 2022) to apply for the allocation of a hearing date. Mr Ryan, juniorcounsel for the appellant, explained that the extension was needed because he had beenunable to confer with the appellant over the holiday period and wished to confer withsenior counsel, including as to whether amended grounds of appeal should be filed.[3] The respondents initially took the position that they would not formally opposethe application and would abide the decision of the Court. They noted, however, thatthere was no explanation as to why counsel could not have been consulted beforethe deadline and argued that the appeal is without merit.[4] On 28 March 2022, the appellant filed amended grounds of appeal, filedthe case on appeal, applied for a hearing date and paid the requisite filing fee.On 29 March 2022, counsel filed a joint memorandum agreeing that a one-day hearingwould be required for the appeal.[5] We are satisfied that the interests of justice require that the application begranted, applying the well-settled principles set out by the Supreme Court inAlmond v Read.2 In particular, we note the delay was short and has caused noprejudice to the respondents. We consider the delay has been adequately explained.We note that amended grounds of appeal were filed during the period for which anextension was sought. These considerations point strongly in favour of granting theapplication. This is not one of those rare cases where the merits of the appeal weighin the balance. The respondents accept the appeal is not hopeless.[6] The appellant submits that any issue as to costs should be addressed as part ofthe substantive appeal. The respondents sought costs in the event only that1 Thirty Eight Moffat Ltd v Auckland Council [2021] NZHC 2978.2 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801. See Yarrow Westpac New Zealand Ltd[2018] NZCA 601 at [4].the application is declined. We consider that the issue of costs on this applicationshould be addressed now.[7] The application was required because of the appellant's delay. On the otherhand, the respondents probably ought not to have opposed it and have risked anadverse costs award in doing so. However, on balance, we do not considerthe appellant should receive costs. We therefore make no order as to costs.Result[8] The application for an extension of time to apply for a hearing date is granted.[9] We direct the Registrar to allocate a hearing date for this appeal in accordancewith the joint memorandum of counsel dated 29 March 2022.[10] We make no order for costs.Solicitors:Govett Quilliam, New Plymouth for AppellantSimpson Grierson, Auckland for Respondents