Body Corporate 172108 v Meader

[2024] NZHC 1894

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2009-404-6868

[2024] NZHC 1894

BETWEEN

BODY CORPORATE 172108

Applicant

AND

MEADER & ORS

(MANCHESTER SECURITIES LIMITED) 37TH RESPONDENT

CIV-2019-404-1445

BETWEEN

BODY CORPORATE 172108

Applicant

AND

MANCHESTER SECURITIES LIMITED

Respondent

Hearing:

On the papers at Auckland

Appearances:

J B Orpin-Dowell and T J G Allan for Applicant

K C Francis for 37th Respondent (Manchester Securities Ltd (in liquidation))

J D Haig for 43rd Respondent (Sage Securities Ltd)

Judgment:

12 July 2024

JUDGMENT (NO.6) OF POWELL J

[Application for leave to appeal]

This judgment was delivered by me on 12 July 2024 at 4.00 pm.

Pursuant to R 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

BODY CORPORATE 172108 v MEADER & ORS [2024] NZHC 1894 [12 July 2024]

[1]I issued judgment in these proceedings on 23 May 2024 (“the judgment”).1

[2]        The 43rd respondent in proceeding CIV-2009-404-6868, Sage Securities Limited (“Sage”), has applied for leave to appeal the judgment.2

[3]        As a preliminary issue, the applicant, Body Corporate 172108 (“Body Corporate”), queried whether leave was required. I raised this issue with Mr Haig, who acts on behalf of Sage, at a conference convened on 27 June 2024 and the issue was left on the basis that Mr Haig would seek instructions and confirm whether he wished to continue with the application for leave to appeal or whether Sage would appeal directly to the Court of Appeal.

[4]        Sage has now confirmed it wishes to proceed with the application for leave to appeal and has requested a direction that the Body Corporate file a notice of opposition, timetable orders for the filing of submissions, and a hearing.

[5]        I decline to make the orders sought by Sage. As Mr Orpin-Dowell has submitted, leave is not required by Sage, who is entitled to appeal as of right as a result of the operation of s 56 of the Senior Courts Act 2016.

[6]Section 56 provides:

56       Jurisdiction

(1)The Court of Appeal may hear and determine appeals—

(a)from a judgment, decree, or order of the High Court:

(b)under the Criminal Procedure Act 2011:

(c)from any court or tribunal under any other Act that confers on the Court of Appeal jurisdiction and power to hear and determine an appeal.

(2)Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.

1      Body Corporate 172108 v Meader & Ors [2024] NZHC 1280.

2      For completeness, the application also sought to recall the judgment and applied to stay enforcement of the costs orders. By separate judgment I dismissed the application for recall and noted that the application to stay the costs orders is premature given that costs have yet to be determined, the Court having recently granted an extension of time for filing submissions on costs.

(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—

(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b)granting summary judgment.

(5)If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.

(6)If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.

[7]        The key to this section’s operation is the definition of “interlocutory application” for the purposes of s 56(3). It is not the same definition as contained in the High Court Rules 2016. Instead, for the purposes of s 56(3) “interlocutory application” is defined in s 4 of the Senior Courts Act 2016 as follows:

interlocutory application—

(a)means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—

(i)an order or a direction relating to a matter of procedure; or

(ii)in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and

(b)includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies.

[8]        Neither (i) or (ii) of paragraph (a) of the definition is applicable to the present case. Therefore, s 56(3) does not apply and leave to appeal is not required. My judgment was not an order or direction relating to a matter of procedure, nor is it “for some relief ancillary to that claimed in a pleading”. The two applications filed by both

the Body Corporate and Manchester, and determined in the judgment, constituted all of the relief at issue in the 6868 proceedings and thereby also engaged s 56(4)(a) of the Act — confirming that leave is not required.

[9]        It is further noted that the 6868 proceedings had been commenced in 2009 by way of originating application. The Body Corporate sought a scheme under the Unit Titles Act 1972 which was subsequently granted by Heath J.3 In 2013, by way of interlocutory application, the Body Corporate applied for a variation of the scheme. This was granted by Fogarty J in 2017,4 and Manchester did not require leave when it subsequently unsuccessfully appealed the judgment of Fogarty J.5

[10]      Given this position, the application by Sage is entirely unnecessary, as are the procedural directions sought. The fact that Sage is now out of time to appeal is not relevant to the determination of the application as an application for leave cannot be a substitute for an application to extend time for filing to appeal.

Decision

[11]Sage’s application for leave to appeal is dismissed for want of jurisdiction.

[12]      The Body Corporate is entitled to costs on the application for leave to appeal. The issue of costs on the leave application is to form part of the parties’ submissions on costs and will be dealt with at the same time as costs on the substantive judgment.

Powell J

3      Body Corporate 172108 v Meader (Nos 2 & 3) (2010) 12 NZCPR 181 (HC).

4      Body Corporate 172108 v Manchester Securities Ltd [2017] NZHC 329.

5      Manchester Securities Ltd v Body Corporate 172108 [2017] NZCA 527, (2017) NZCPR 65.