Body Corporate Number DPS 92535 v 3A Composites GmbH

[2022] NZHC 2912

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2509

[2022] NZHC 2912

BETWEEN

BODY CORPORATE NUMBER DPS 91535
First plaintiff

ARGOSY PROPERTY NO 1 LIMITED
Second plaintiff

AND

3A COMPOSITES GmbH

First defendant

TERMINUS 2 LIMITED
Second defendant

SKELLERUP INDUSTRIES LIMITED

Third defendant

Hearing:

On the papers

Counsel:

J A Farmer KC, S P Pope and MJF Taylor for plaintiffs J Q Wilson and A M Boberg for first defendant

M C Harris and Z A Brentnall for second defendant JWJ Graham and R M Irvine-Shanks for third defendant

Date of judgment:

8 November 2022

JUDGMENT OF JAGOSE J

[Leave to appeal]

This judgment was delivered by me on 8 November 2022 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

J A Farmer KC, Auckland

A R Galbraith KC, Auckland M D O’Brien KC, Auckland Russell McVeagh, Auckland Bell Gully, Auckland

Gilbert Walker, Auckland Chapman Tripp, Auckland

BODY CORPORATE NUMBER DPS 91535 v 3A COMPOSITES GmbH [2022] NZHC 2912 [8 November 2022]

[1]                  My 14 September 2022 judgment refused the plaintiffs’ application, under High Court Rules 2016 r 4.24, to act as ‘representative plaintiffs’ in this proceeding.1 They now seek leave to appeal my judgment, contending I erred in failing to follow and apply established principle and by focusing on a single common issue, and otherwise. The defendants abide my decision on leave to appeal.

Approach to applications for leave to appeal

[2]                  Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders or decisions on interlocutory applications in civil proceedings without this Court’s leave. The object of requiring such leave is:2

… to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the [appellate] Court, while preserving the integrity of the law and the interests of justice.

[3]                   It is “well settled” the approach to leave is as a “filtering mechanism” for which “[t]he threshold is high”:3

… leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

The question is if there is something justifying intermediate appeal.

Discussion

[4]                  I accept, if I erred in refusing the plaintiffs representative status, the error cannot be corrected on appeal from any substantive judgment. There already is intermediate appeal against the first defendant’s successful protest to jurisdiction on statutory causes of action, which may provide additional grounds for representation.

1      Body Corporate Number DPS 91535 v 3A Composites GmbH [2022] NZHC 2355.

2      Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.

3      Stockman v Health and Disability Commissioner [2022] NZCA 511 at [13], citing Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] (citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13]).

[5]                  The law on representative actions continues incrementally to be developed.4   I accept also errors argued for by the plaintiffs may have significance and implications for the case, for the plaintiffs and for the public more generally.

[6]                  I apprehend no delay is likely to be caused by expanded intermediate appeal, and the appeal’s result may justify its pursuit. I therefore will grant leave to appeal.

Result

[7]                  Under s 56(3) of the Senior Court Act 2016, the plaintiffs have leave to appeal to the Court of Appeal against my decision of 14 September 2022.

—Jagose J

4      Law Commission Ko ngā Hunga Take Whaipānga me ngā Pūtea Tautiringa: Class Actions and Litigation Funding (NZLC R147, 2022) at [2.11].