Clearwater Cove Apartments Body Corporate No 170989 v Auckland Council
[2012] NZHC 2832
•26 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-5751 [2012] NZHC 2832
UNDER the Weathertight Homes Resolution
Services Act 2006
BETWEEN CLEARWATER COVE APARTMENTS BODY CORPORATE NO 170989
First Appellant
ANDNICHOLAS VAN DIJK AND NORMAN PALMER AS TRUSTEES OF THE LIVI TRUST
Second Appellants
ANDAUCKLAND COUNCIL First Respondent
ANDTHE FLETCHER CONSTRUCTION COMPANY LIMITED
Second Respondent
Hearing: 24 October 2012
Appearances: B A Ivil on behalf of the First Appellant
B L Martelli on behalf of the First Respondent
G J Christie for the Second Respondent
Judgment: 26 October 2012
JUDGMENT OF ELLIS J
[On Application for Recall of Judgment]
This judgment was delivered by me on 26 October 2012 at 3.15 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Heaney & Co, PO Box 105391, Auckland Simpson Grierson, Private Bag 92518, Auckland D E Smyth, PO Box 105270, Auckland
Copy To: B A Ivil, PO Box 44, West Park Village, Waitakere City
CLEARWATER COVE APARTMENTS BODY CORPORATE NO 170989 V AUCKLAND COUNCIL HC AK CIV-2011-404-5751 [26 October 2012]
[1] On 15 September 2011 Clearwater Cove Apartments Body Corporate No
170989 and Nicholas Van Dijk and Norman Palmer as trustees of the Livi Trust filed an appeal against a decision of the Weathertight Homes Tribunal in relation to a claim that had been brought by them in the Tribunal relating to a development at
16 Clearwater Cove, Waitakere.
[2] The first conference in relation to the appeal took place on 11 October 2011 and certain timetable directions were made including a direction that the appeal would be heard over two days on 10 and 11 April 2012. Those dates were later changed to 23 and 24 April 2012. However, as a result of non-compliance by the appellants with any aspect of the timetable, that fixture was vacated. Further timetable directions were made by Wylie J on 1 May 2012. These directions included that the appellants were to file and serve a common bundle by 12 June 2012 and were to file and serve a synopsis of submissions by 6 July 2012. Wylie J directed that the appeal was to be heard on 28 and 29 August 2012.
[3] On 18 May 2012, the second respondent (Fletchers) filed a notice of application for increased security for costs of $40,000. That was opposed. There was a hearing before me on 3 July 2012. Notwithstanding Mr Smyth’s advice to the Court on 16 April that “there is nothing now inhibiting the preparation of the bundle and submissions” the appellants were by that point in default of the new timetable.
[4] On 30 July 2012, I granted the application to a limited extent, and ordered that the appellants were to pay increased security of $5,000, failing which the appeal would be stayed.[1] I directed that payment was to be made by 5 pm on Thursday 9
August 2012.
[1] Clearwater Cove Apartments Body Corporate No 170989 v Auckland Council [2012] NZHC 1870.
[5] No payment of the increased security was made by that date and on
14 August 2012 the Registry advised counsel for the appellants and counsel for the second respondent that there would be a further call in the Appeals List of the matter at 9 am on 21 August 2012. The principal reason for the further call was that the hearing of the appeal was at that point still scheduled for 28 and 29 August and a decision had to be made about whether that fixture would go ahead.
[6] In light of the imminent hearing date, the timetable default and their failure to pay the increased security, the appellants were also asked to file a memorandum updating the Court as to their position by midday on Friday 17 August 2012.[2]
[2] Counsel was advised of this direction by email from the Registrar on 14 August 2012.
[7] No such memorandum was, however, filed. Moreover, the appellants’ timetable default had not been rectified and, indeed, had been compounded by their failure to file and serve a synopsis of submissions.
[8] There was no appearance by or on behalf of the appellants at the conference on 21 August (which took place in front of me). There was necessarily discussion between the bench and counsel for the second respondent as to the appropriate final disposition of the appeal. In that context a question was raised as to whether the appeal had been brought under the District Courts Act 1947. The reason for that inquiry was that r 20.13 provides that in appeals brought under that Act failure to pay security results in the (automatic) deemed abandonment of the appeal. If the appeal had not been brought under the 1947 Act, r 20.13 provides that failure to pay security meant that a respondent could, instead, apply for an order dismissing the appeal.
[9] Counsel for the second respondent undertook to look further into the matter. The fixture allocated for 28 and 29 August was formally vacated.
[10] A minute recording these events (including the question as to the application of rule 20.13) was issued later that day (21 August) and emailed (that day) to counsel for the appellants.
[11] The following day (22 August 2012) counsel for the second respondent filed a memorandum (which was also emailed to the appellants’ counsel) advising:
(a) that in his view the appeal was not an appeal under the District Courts
Act; and
(b)submitting that the appeal should be immediately dismissed pursuant to r 20.13(5) and seeking an order for costs against the appellants.
[12] In light of the events set out above I then made an order striking out the appeal. The order was immediately sealed by the second respondents.
[13] On 29 August Mr Ivil (purporting to act on behalf of the appellants) filed a memorandum seeking recall of that decision. In it, he said:
(a) The failure to file the memorandum sought on 14 August was an
“oversight”, as was the failure to appear on 21 August;
(b)The appellants had been advised by their counsel that their failure to pay security could result only in the appeal being stayed and that the terms of my judgment confirmed that;
(c) That they were advised by their counsel that failure to pay security did not put the appeal at risk and that any application to have it struck out would need to be made on notice;
(d) The second respondent’s application to dismiss the appeal was not
made “on notice”;
(e) The appellants did not become aware of their counsel’s failure to file a memorandum or to appear, the 21 August minute or of the order dismissing the appeal until they attended a meeting with him on Sunday 26 August;
(f) The appellants intended to instruct new counsel and Mr Smyth would be seeking leave to withdraw;
(g) The further security ordered on 30 July had been available since
27 August and could be paid immediately;
(h)The agreed bundle had in fact been completed on 9 August and was ready to be filed on that day, but was not because the appellants “current counsel” believed the matter to have been stayed.
[14] No appeal from my decision of 23 August has been filed and the appellants are now out of time in that respect.
[15] Mr Smyth has not sought leave to withdraw as counsel but has not subsequently made any appearances on behalf of the appellants. Nor have any steps been taken by the appellants’ solicitor on the record, Mr Atmore.
[16] It is also relevant that, in the meantime (on 22 August 2012) the Weathertight Homes Tribunal issued its costs’ determination in relation to the adjudication that was the subject of the appellants’ appeal. The Tribunal ordered that the Body Corporate pay to:
(a) Auckland Council its actual legal costs of $341,650.13 and experts’
fees of $105,889.69;
(b) Fletchers its actual legal costs of $433,022.46 and experts’ fees of
$153,183.77.
[17] The grounds upon which the WHT ordered indemnity costs were essentially that:
(a) The appellants’ substantive claim was largely without merit;
(b)The appellants had imprudently refused Calderbank offers made by both the respondents (which warranted an award of increased costs); and
(c) There were grounds for concluding that the appellants had acted in bad faith in their pursuit of the claim.
[18] An appeal from that determination was filed on 18 September 2012.[3] The
[3] Other, separate, applications have been made by the respondents in relation to that appeal and they will be dealt with by me in a separate judgment.
appellants’ prospects of success on that appeal are partly (but not wholly) dependent
upon their ability successfully to challenge the outcome of the substantive
adjudication. Such a challenge is, of course, only possible if the appellants succeed in this application for recall or in any appeal out of time from the decision of
23 August that may yet be permitted.
[19] Unsurprisingly, the respondents opposed the application for recall on the grounds that the order has already been sealed and that r 11.9 does not therefore permit it to be recalled.
[20] Because of the information provided by Mr Ivil and, in particular, his suggestion that he was not aware of certain critical matters in the chronology above, I convened a telephone conference with the parties and that occurred on 18 October
2012.[4] At the conference I raised with Mr Christie the possibility that, on the basis
[4] Mr Ivil attended on behalf of the appellants. No issue for the moment is taken with his ability to represent the Body Corporate.
of the Court of Appeal’s decision in R v Smith, the Court’s inherent jurisdiction to recall could be invoked if the order was made without jurisdiction or if it was clear that a relevant breach of natural justice had occurred.[5]
[5] R v Smith [2003] 3 NZLR 617 (CA).
[21] Mr Christie’s quite reasonable response was that, given that they were seeking an indulgence from the Court, there was an obligation upon the appellants to place before the Court a full and substantiated picture of what had happened during the critical period at the end of August. He said that confirmation of Mr Ivil’s account from Mr Smyth or, at least, the production of any relevant emails and advice would, in fairness be required. Mr Ivil readily concurred with that proposition and agreed to provide the information sought by Mr Christie. To facilitate that it was agreed that Mr Christie would email Mr Ivil a list of questions or issues that would need to be covered in any further affidavit. I directed (with the agreement of Mr Ivil) that any such affidavit was to be filed by 5 pm on 19 October.
[22] Later that day Mr Christie’s junior then sent Mr Ivil an email posing a number of questions and seeking further information about what Mr Ivil was or was
not told by Mr Smyth or his instructing solicitor.
[23] Mr Ivil filed a further affidavit as directed. He did not, however, provide much of the information sought by Mr Christie. Rather, he suggested that much of the information sought was protected by legal professional privilege.
[24] Mr Christie then filed a further memorandum in which he essentially submitted that:
(a) in the absence of the further information sought it could not fairly be concluded that there had been any breach of natural justice;
(b)the absence of evidence on critical points meant that there was an inference to be drawn that the argument now advanced by Mr Ivil in support of recall had merely been constructed in hindsight;
(c) to the extent the failure to disclose the information sought was said to be justified by a claim of privilege, such privilege had already been waived by Mr Ivil in his earlier memorandum and affidavit;
(d) the decision in Smith did not apply:
(i)in circumstances where there is (or, in the present case, was) a right of further appeal;
(ii) in the absence of an acknowledged error.
[25] Mr Ivil was given the opportunity to address these matters during the hearing before me on 23 October.[6] He maintained his position as to what had occurred and said that Mr Smyth would yet be prepared to confirm it. He could not explain why Mr Smyth had neither appeared nor sought to be excused. He emphasised the importance of the matter to the appellants and the disparity of resources between the
[6] The hearing was principally concerned with interlocutory matters related to the appellants’ costs
appeal.
parties.
[26] I have carefully considered the application in light of all of the above. In the end, I do not consider it is open to me to recall my judgment, essentially for the reasons advanced by Mr Christie. Recall is not available in terms of rule 11.9 and in terms of any inherent jurisdiction to recall, the reality is that the appellants could have appealed my order but did not do so. This is not therefore a case akin to those contemplated by the Court in Smith.
[27] For completeness, I record that even if I am wrong in that, and it is possible to recall by virtue of the Court’s inherent jurisdiction, I would not be inclined to exercise that jurisdiction here. Notwithstanding that he was given the opportunity to do so, Mr Ivil has failed to provide the Court with an adequate evidentiary basis for concluding that there has been any breach of natural justice here. Unfortunately the appellants’ history of default and their cavalier attitude to Court directions and orders has not stood them in good stead in terms of granting any further indulgence.
[28] The application for recall is dismissed accordingly.
Rebecca Ellis J
Postscript:
[29] Ten minutes before this judgment was scheduled to be released a further memorandum from Mr Ivil was received by the Registry. Nothing in that memorandum persuades me that I should alter the conclusion reached above.
1
1
0