In Almond v Read [2017] NZSC 80, the New Zealand Supreme Court considered whether and to what extent the merits of an applicant's case will be taken into account when deciding whether to grant an extension for an out of time appeal.

The appellant, Almond, had instructed her solicitors to file an appeal against an unfavourable High Court decision.  Almond's solicitors filed the appeal, but did so one day out of time.  As a result, Almond sought an extension of time.  The Court of Appeal refused to grant the extension, as they considered Almond's case to be hopeless.  Almond appealed the ruling to the Supreme Court.

The Supreme Court held that the following factors were relevant:

  • The length of the delay
  • The reasons for the delay
  • The conduct of the parties
  • The significance of the issues at hand
  • Whether any prejudice had been suffered by the respondent.

The Court also held that although the merits of one's case could be a relevant consideration, the merits are unlikely to be relevant if the above factors are overwhelming.  In Almond's case, the merits of the case carried little weight as there had been an insignificant delay caused by a solicitor's error, and the respondents suffered no prejudice.  Unless the case is "clearly hopeless", consideration of the merits will not by itself warrant a denial for an extension of time where the delay is insignificant. 

See the Court's decision here.