Body Corporate 188529 v North Shore City Council

[2007] NZCA 255

IN THE COURT OF APPEAL OF NEW ZEALAND

CA250/07 [2007] NZCA 255

BETWEEN  BODY CORPORATE 188529

First Appellant

ANDKATRINA MARGARET SANGHA, DAVINDER SINGH, DEVLIN PROPERTIES LIMITED, MICHELLE JANETTE TURNER, LISA ADELLE TURNER, CLIFFORD SCOTT PARKINSON, JUDITH ROSEMARY PARKINSON, DAVID PAUL HALFORD AND BLUE SKY HOLDINGS LIMITED Second Appellants

ANDNORTH SHORE CITY COUNCIL First Respondent

ANDROBERT HENRY GRAHAM BARTON AND KAY BARTON

Second Respondents

ANDR F COUGHLAN AND ASSOCIATES Third Respondent

Hearing:         13 June 2007

Court:            Ellen France, Ronald Young and Keane JJ Counsel:    T Rainey and H K Harkess for Appellants

D J Heaney and G Grant for First Respondent
G Bogiatto for Second Respondent
A Maclean for Third Respondent

Judgment:      22 June 2007

Reasons:        22 June 2007

JUDGMENT OF THE COURT

The appeal is granted.

BODY CORPORATE 188529 AND ANOR V NORTH SHORE CITY COUNCIL AND ORS CA CA250/07 22

June 2007

REASONS OF THE COURT

(Given by Ellen France J)

[1]      We have before us an appeal against an order of Harrison J declining to adjourn a trial in these “leaky home” proceedings which is due to commence in the High Court at Auckland at 10 am on 16 July 2007: HC AK CIV-2004-404-3230

29 May 2007.

[2]      This panel has been convened to deal with the matter because, since the appeal was filed on 1 June 2007, the respondents have advised that they will consent to the appeal being granted.

[3]      The circumstances leading to the appeal are set out in Harrison J’s minute of

29 May 2007 and we do not repeat them.

[4]      We heard counsel and granted the appeal by consent.  We said we would give short reasons and this we now do.

[5]      We commence, however, by reiterating the comment we made to counsel that we  share  the  reservations  expressed  by  this  Court  in  Doone  v  Fairfax New Zealand  Limited  CA  64/05  26  April  2005  as  to  whether  this  Court  has jurisdiction in relation to this appeal.  As this Court said in that case at [5]:

The law relating to  appeals  under  s 66 of the Judicature  Act  1908  was reviewed by this Court in The Association of Dispensing Opticians of New Zealand Inc v The Opticians Board [2000] 1 NZLR 158. The Court there noted that rulings made in the course of the hearing (such as an application for an adjournment) will not ordinarily be subject to an interlocutory appeal (at 166). There must be a sound substantive concern for this Court to have jurisdiction.

[6]      In the present case, all parties have agreed that the appeal should be granted. We also understand from counsel that it has been possible for the registry at the High Court  in  Auckland  to  accommodate  the  fixture  at  a  later  date.    In  these circumstances, we saw it as appropriate to grant the appeal.

[7]      No question of costs arises.

Solicitors:

Grimshaw & Co, Auckland for Appellants

Heaney & Co, Auckland for First Respondent

Kidd Tattersfield McClean, Auckland for Third Respondent