Duffy v Vervoort

[2013] NZCA 522

IN THE COURT OF APPEAL OF NEW ZEALAND

CA243/2013
[2013] NZCA 522

BETWEEN	WILLIAM DUFFY AND RAYMOND DENNIS SPEARS Appellants
AND	EMILIE PETRONELLA CORADINA VERVOORT Respondent

Court:

O'Regan P, Ellen France and Stevens JJ

Counsel:

A J Sherlock for Appellants
P T Finnigan for Respondent

Judgment:

(On the papers)

25 October 2013 at 4.30 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed for want of jurisdiction.

BThe appellants are to pay the respondent’s costs in the sum of $2,000.00 plus usual disbursements in the sum of $166.00.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

1. The respondent, Ms Vervoort, filed a proceeding in the High Court against the trustees of the William Duffy Family Trust (the Trust) including Messrs Duffy and Spears, the appellants, seeking declarations in respect of the Trust, equitable damages, interest and costs.  The appellants, who reside in Fiji, filed an appearance under protest and objection to the jurisdiction of the High Court under r 5.49 of the High Court Rules (the Rules).

2. The appellants then filed an application in the High Court to dismiss Ms Vervoort’s proceeding in reliance on rr 5.49, 6.28 and 6.29 of the Rules.  The application was heard by Associate Judge Sargisson by way of interlocutory application in Chambers.  The Associate Judge, in a reserved judgment, held that the Court had jurisdiction to determine the proceeding and dismissed the application to have the proceedings dismissed.  The appellants’ appearance under protest was set aside.[1]

   [1]Vervoort v Forrest & Ors (HC) Ak CIV-2011-404-6668, 26 March 2013.

3. The appellants filed an appeal in this Court against the judgment of Associate Judge Sargisson.  The appeal was due to be heard in this Court on 12 November 2013.

4. The file was this week referred to me on a matter of representation.  This necessitated a telephone conference during which the jurisdiction of this Court to deal with the appeal was raised.

5. Counsel have helpfully filed a joint memorandum accepting that this Court does not have jurisdiction to deal with the matter.  As the matter involved the hearing of an interlocutory application by an Associate Judge in Chambers, any challenge to the judgment must be by way of review to a Judge of the High Court.[2]  By virtue of s 26(2) of the Judicature Act 1908 this Court may only hear appeals from decisions of an Associate Judge if the decision is one made “in Court” rather than “in Chambers”.  The “in Court” jurisdiction of an Associate Judge is clearly set out in s 26(I) of the Judicature Act.  The appellants’ interlocutory application is not referred to in that section.

   [2]That an application for review to the High Court is the appropriate procedure as confirmed by this Court in Ludgater v Gerling [2010] 2 NZLR 145 at [14]–[16].

6. It follows that the appeal must be dismissed for want of jurisdiction.

7. An order for costs is appropriate.  There will be an order for costs pursuant to r 53 of the Court of Appeal (Civil) Rules 2005 in the sum of $2,000 plus disbursements in the sum of $166.00.

Solicitors:
Hesketh Henry, Auckland for Appellants
Andrew Owen Thomas of East Auckland Law, Auckland for Respondent