Ginivan v Southern Response Earthquake Services Ltd
[2020] NZHC 1469
•26 June 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000116
[2020] NZHC 1469
BETWEEN WILLIAM FRANCIS GINIVAN and
BRETT WILLIAM REID as trustees of the GIFT TRUST
First Plaintiffs
AND
WILLIAM FRANCIS GINIVAN and DIANE SHIRLEY CARSON
Second Plaintiffs
AND
SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED
Defendant
Hearing: 19 June 2020 Appearances:
G A Cooper for Plaintiffs M A Powell for Defendant
Judgment:
26 June 2020
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 26 June 2020 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Ginivan v Southern Response Earthquake Services Ltd [2020] NZHC 1469 [26 June 2020]
The application
[1] This proceeding concerns the first plaintiffs’ property at 24 Thorrington Road, Cashmere, Christchurch which was insured with the defendant and damaged by earthquake.1 The plaintiffs have elected under their policy of insurance to rebuild the house on the property, but their claim is not resolved.
[2] On 19 February 2019, Whata J ordered the defendant be given access to the property to carry out an inspection at a time to be agreed by the parties. The plaintiffs did not allow the inspection. On three further occasions the court has required the plaintiffs to allow the inspection. The plaintiffs have not complied with those orders either.
[3] On the last such occasion, on 14 November 2019, relying on r 7.48(1) High Court Rules I ordered that unless the defendant was given access to the property by 14 December 2019 this proceeding was stayed pending further order of the court. The plaintiffs seek leave to appeal from that order pursuant to s 56(3) of the Senior Courts Act 2016.
Background
[4] The statement of claim was filed on 21 February 2017 and the plaintiffs seek declaratory relief concerning the scope and payment of the costs of the rebuild. The defendant filed its statement of defence on 18 April 2017. Both the statement of defence and the defendant’s memorandum of 10 May 2017 for first case management review note the plaintiffs’ refusal to allow the defendant access to the property to confirm its assessment of the cost to rebuild the house.
[5] On 16 May 2017, Whata J issued a minute for first case management review. He made directions which relevantly required the plaintiffs to provide a construction contract containing the detailed designs for works required to rebuild the house by 31 August 2017.
1 Throughout this judgment references to the plaintiffs mean the first plaintiffs.
[6] The plaintiffs did not comply with that direction and on 17 October 2017 Courtney J made an amended timetable. The plaintiffs were to provide the construction contract/designs by 1 April 2018. These have not been provided due to unresolved disputes between the parties.
[7] From an early stage there have been disputes about professional fees. In a minute of 20 March 2018, Associate Judge Osborne noted these were preventing progress with the proceeding. He made a timetable that any party seeking resolution of a matter relating to the provision of or payment for professional reports was to file an interlocutory application by 12 April 2018. On 12 April 2018, the plaintiffs filed an application for orders requiring the defendant to approve and provide funding for expert engagement. The application was opposed by the defendant.
[8] On 12 September 2018, Gendall J issued his decision on the plaintiffs’ application.2 He noted the plaintiffs effectively sought orders that the defendant approve and pay any request by them for a range of existing experts and for future experts they proposed to engage. An ancillary purpose of the application appeared to be to establish a mechanism for the future to avoid what the plaintiffs considered were delays in the defendant approving cost estimates/quotes given by experts.3
[9] Gendall J identified the absence of independent evidence from the plaintiffs to support the amounts claimed and said in relation to proposed fees of the plaintiffs’ preferred architects, Warren and Mahoney:4
… For the Court to properly determine whether the suggested experts’ fees, in particular, the Warren and Mahoney estimate, are “reasonable” in terms of the policy, some independent quantity surveying evidence is required as a minimum.
Therefore, I am simply not in a position at this stage to make an order against Southern Response requiring it to approve and make payment of particular expert fees on the basis submitted by the [plaintiffs].
2 Ginivan v Southern Response Earthquake Services Ltd [2018] NZHC 2403.
3 At [11].
4 At [35] and [36].
[10] Gendall J decided to deal with the plaintiffs’ application by making orders for a bespoke process for the engagement of experts and approval of their fees for the house rebuild.5 The directions he made were:6
(a)Southern Response is to review and respond to any request by the trustees for the approval of the “reasonable” fees of an expert within 10 working days of the date that request is made.
(b)The response by Southern Response is to consist of one of the following options:
(i)If Southern Response reasonably requires further information in order to determine whether to approve the fee proposal, it will request that the trustees provide further clarification and, in particular, it will refer directly to the specific points upon which clarification or further detail is required.
(ii)If Southern Response determines that the fees in question are reasonable, Southern Response is to pay those fees within 10 working days of the provision by the trustees of the relevant invoice and payment details.
(iii)If Southern Response does not find the fees in question to be reasonable, Southern Response is to advise the trustees of its decision, including its full reasons for the decision, and it will pay what it considers to be a reasonable fee for the relevant work within 10 working days of the provision by the trustees of the relevant payment details.
(c)In the situation where Southern Response does not pay the full amount of an experts’ fees as sought on the basis that it does not consider them to be reasonable in all the circumstances, the trustees may seek at trial that Southern Response pay the balance of the expert costs together with any interest or other costs which the Court at trial may award.
(d)In any event, leave is reserved to either party in the event of disagreement, on 48 hours’ notice, to seek the help of the Court to resolve any quantum or other issues that arise on actual professional or experts’ fees to be incurred here.
[11] There was a case management teleconference before Whata J on 19 February 2019. It is seminal to the matter presently before the court. Following Gendall J’s judgment, there had been little progress made as to the approval and payment of professional fees. Whata J issued a minute noting two key issues namely, non- payment of fees and a request by the defendant to undertake a further site inspection. In relation to the site inspection issue, Whata J said:
5 At [40].
6 At [41]
5.The plaintiffs oppose the request for a site visit by Southern Response. The plaintiffs say that Southern Response has already undertaken site visits, agrees that a rebuild is necessary and has a full design proposal for the rebuild so there is no need for any more site visits. Mr Pourell [sic] submits that a further site visit is needed for Southern Response to be able to review the reasonableness of the costs of the rebuild.
6.While I appreciate the plaintiffs’ frustration, I am satisfied that Southern Response should be allowed one further site visit for the reasons stated by Mr Pourell [sic] at a time to be agreed.
[12] This was the first time the plaintiffs were ordered to allow the defendant access to the property. There was no challenge to Whata J’s order.
[13] Shortly after this Mr Ginivan suffered a heart attack and at the request of the plaintiffs the case was put on hold. The case came before the court for case management on 25 July 2019. A joint memorandum of counsel noted a dispute over the engagement of Warren and Mahoney. The process set out in Gendall J’s judgment was engaged. The parties agreed on a timetable, notably for the filing of evidence including evidence from quantity surveyors for both parties. The need for evidence from quantity surveyors was consistent with the observations of Gendall J noted at [9] above.7 The matter was to be determined at a hearing on 21 October 2019.
[14] The defendant attempted to get access to inspect the property in accordance with the order of Whata J of 19 February 2019, but access was refused. On 27 August 2019, the defendant sought the court’s assistance. In a memorandum to the court of 30 August 2019, the plaintiffs’ stance was that they opposed site visits until the application concerning Warren and Mahoney’s engagement had run its course.
[15] The matter came before Associate Judge Lester on 2 September 2019. He issued a minute on the papers. He noted Whata J’s order of 19 February 2019 stands, was not challenged and was not subject to the plaintiffs approving a site visit. Associate Judge Lester directed the defendant was to be given access to the property on Thursday, 26 September 2019 unless there were “insurmountable difficulties” with access on that day. In the case of such difficulties the plaintiffs would need to set those
7 At [35] and [36].
out in an affidavit and specify suitable times for access on Friday, 27 September 2019 or Monday, 30 September 2019.
[16] This was the second time the court required the plaintiffs to allow the defendant to inspect the property. There was no challenge to Associate Judge Lester’s order.
[17] The defendant made further attempts to arrange a site visit, but the plaintiffs would not allow it. On 27 September 2019, the defendant sought an urgent teleconference to address the matter. On 2 October 2019, Mr Ginivan filed an affidavit (dated 26 September 2019) providing reasons why he believed he was not obliged to allow an inspection of the property. He had issued a trespass notice to the defendant, its contractors and employees and said he would enforce it should they enter the property. The reasons for the plaintiffs’ refusal to allow the inspection were:
(a)the wording of the insurance policy only allowed one inspection which was carried out by the defendant in 2012;
(b)the inspection in 2012 was sufficient;
(c)the defendant had misled the plaintiffs which had eroded their trust in the defendant; and
(d)the defendant should not be afforded the opportunity to inspect the property until such time as it provided its reasons for its view that Warren and Mahoney’s fee proposal was unreasonable.
[18] The case came before me at a telephone conference on 17 October 2019. I heard argument from counsel and issued a minute stating:
The plaintiffs’ view is that they should not be obliged to allow the defendant to inspect the property. Be that as it may, the court has now, on two occasions, directed otherwise. It is not for the plaintiffs to decide if, and under what circumstances, they will comply with the court’s directions. The court will not allow its directions to be wilfully ignored.
[19] I was satisfied that the defendant’s preparation for the hearing on 21 October 2019 was prejudiced and vacated the hearing. In the expectation the plaintiffs would
reconsider their stance, I did not grant the defendant’s request to impose an unless order. I directed the case was to be called again for a further telephone conference on 13 November 2019 by which time the plaintiffs were to have allowed the defendant to inspect the property.
[20]This was the third time the plaintiffs were required to allow the inspection.
[21] The plaintiffs did not comply with my direction. Instead, their counsel filed a memorandum of 8 November 2019 setting out once more the matters advanced to justify the plaintiffs’ refusal to comply with the court’s directions. In response, the defendant’s counsel filed a memorandum on 11 November 2019 arguing the plaintiffs were blatantly refusing to comply with the court’s orders. The defendant sought orders the plaintiffs were to provide dates and times for the inspection and withdraw their trespass notice failing which the claim be struck out. They also sought indemnity costs.
[22] The matter was back before me on 13 November 2019. After hearing from counsel, I issued a minute rejecting the reasons advanced by the plaintiffs for refusing the inspection. I found the plaintiffs were in deliberate breach of the court’s orders and gave them one further opportunity to comply failing which the proceeding would be stayed. I said:
[15] The plaintiffs’ failure to comply with the Court’s orders is deliberate and repeated. Despite the attempt to associate the site visit and the interlocutory application it is apparent that the plaintiffs have no intention of allowing a site visit to occur at any time. They have been given opportunities to comply with the Court’s directions, but those opportunities have not been taken. It is therefore appropriate that as a matter of last resort an Unless Order be made.
[16] The defendant has asked that the claim be struck out if the terms of the Unless Order are not complied with. Bearing in mind the requirement that any sanction must be proportionate to the default, I consider the appropriate response is to order a stay of the proceeding.
[17]I therefore order as follows:
(a)The plaintiffs are to allow the defendant, its agents and experts to undertake a site inspection on a date that is suitable to the defendant on or prior to 14 December 2019.
(b)The plaintiffs are to withdraw the trespass notice that has been issued against the defendant to allow the site visit to occur and
are to cooperate with the defendant and allow uninterrupted access to the property.
(c)The plaintiffs’ claim shall be stayed pending further order of the Court if they (or any of them):
(i) fail to allow the defendant to conduct the site visit on or prior to 14 December 2019; or
(ii) cancel or otherwise frustrate the site visit once it has been confirmed.
[23] This was the fourth time the plaintiffs were ordered to allow the inspection. On this occasion, the plaintiffs seek leave to appeal.
The law
[24]Section 56 of the Senior Courts Act 2016 provides:
56 Jurisdiction
(1)The Court of Appeal may hear and determine appeals –
(a) from a judgment, decree, or order of the High Court:
…
(2)Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.
(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.
…
(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.
[25] There is a high threshold to be crossed before the court will grant leave to appeal. In Finewood Upholstery Ltd v Vaughan,8 Fitzgerald J noted with approval the approach of Dobson J in A v Minister of Internal Affairs,9 where he observed the
8 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9].
9 A v Minister of Internal Affairs [2017] NZHC 887 at [10] – [12].
following considerations would be relevant to any such application for leave to appeal:10
(a)A high threshold exists for the granting of leave. An allegation of error of law or fact is generally insufficient. An applicant should raise an arguable error.
(b)Leave should only be granted where the circumstances warrant incurring further delay.
(c)The alleged error should be of general or public importance that requires determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.
[26]Fitzgerald J also noted:11
The requirement for leave to appeal should serve as a “filtering mechanism”, to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.
Ultimately, and taking into account those considerations set out at [9] above, the court hearing an application for leave to appeal from an interlocutory order will need to stand back and assess, in a pragmatic and realistic way, whether the interests of justice are served by granting leave to appeal.
[27] In Li v Chief Executive, Ministry of Business, Innovation and Employment, Palmer J considered the authorities on s 56 and said as follows:12
Pulling all these strands together, I consider the text, purpose, context and case law of s 56 suggests an application to appeal an interlocutory decision under s 56(3) is likely to be granted if:
(a)the appeal is not likely to be overtaken by the substantive hearing or cannot otherwise be considered as effectively in the context of an appeal of the substantive decision; or
(b)the appellant is likely to be prejudiced by a postponement to the substantive appeal; or
(c)the appeal may be dispositive of the case in law or as a practical matter;
and
10 Finewood Upholstery Ltd v Vaughan, above n 8, at [9].
11 At [13] and [14].
12 Li v Chief Executive of Ministry of Business Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134 at [21] and [22].
(d)the arguments in the appeal are capable of bona fide and serious argument; and
(e)the issue on appeal concerns a decision of sufficient significance to the parties or a question of law or general principle of sufficient importance as to outweigh the cost and delay of the appeal.
More pithily, perhaps, an application to appeal an interlocutory decision under s 56(3) is likely to be granted where: (a) there is good reason to consider it before, or separately to, the substantive appeal; and (b) it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal.
[28] The Court of Appeal considered s 56 in Ngai Te Hapu Inc v Bay of Plenty Regional Council.13 The court noted the observations of Fitzgerald J in Finewood to the effect that the requirement for leave to appeal should serve as a filtering mechanism and the considerations referred to by Dobson J in A v Minister of Internal Affairs and said:14
We agree that 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.
Submissions
Plaintiffs’ submissions
[29] The application for leave to appeal alleges nine errors of fact or law in my minute of 14 December 2019. In his submissions, Mr Cooper narrowed the field and I address the matters he relied upon below.
[30] Mr Cooper submitted that an issue of general or public importance arises in this case concerning how, in an insurance context, the courts resolve disputes over professional fees. In addition this matter is, he submits, of sufficient importance to the plaintiffs to justify an appeal because of the loss of trust between the plaintiffs and the defendant and the imposition on their property rights of the order made. It is of further significance, he argues, because the plaintiffs have invoked the court’s assistance to obtain payment of experts’ fees and Gendall J’s judgment should be enforced.
13 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291.
14 At [17].
[31] Mr Cooper also submits that delay is not a significant factor against granting leave to appeal as it is the plaintiffs who wish to appeal, and the burden of delay falls disproportionately on them.
[32]He did not identify any additional factors relevant to the interests of justice.
Defendant’s submissions
[33] Mr Powell encapsulates the defendant’s position in two straight-forward propositions. First, the plaintiffs’ objection is to the order that the defendant be allowed access to the property made by Whata J on 19 February 2019 and they are out of time to challenge it. Second, the order at issue is minor, procedural in nature, correctly made and commonplace in earthquake litigation. In those circumstances the plaintiffs fall well-short of crossing the high threshold for granting leave to appeal.
Analysis
[34] Before turning to the alleged errors of fact and law I note it is accepted by Mr Cooper that the order of Whata J was validly made and stands. It necessarily follows that the plaintiffs’ concern relates to the timing of the inspection. To this end, the plaintiffs argue they have not breached the order or that it is premature to enforce it.
[35] I also note that because the merits of this application weigh so heavily against the granting of leave to appeal it is not necessary for me to consider the defendant’s submission that this application is time-barred although much could be said in support of that position.
Alleged errors of fact or law
[36] Mr Cooper argued I was wrong to find the plaintiffs breached Whata J’s order because the site visit was subject to their agreement as to date and time. The plaintiffs contend they are entitled to refuse an inspection as it will serve no useful purpose at this time. The making of a direction fixing a date for the site inspection was, he submits, inconsistent with the reason Whata J made his order and premature.
Furthermore, before agreeing to an inspection, appropriate terms should be imposed as to the basis upon which an inspection will occur for the plaintiffs’ protection.
[37] Whata J plainly intended the inspection to follow within a reasonable time of the making of the order and not at some uncertain time, if and when the plaintiffs considered circumstances justified it. He did not leave open the possibility that the plaintiffs might refuse to allow the defendant to inspect the property. While the parties were to decide when the inspection would occur, it has not, and could not, be contended that since 19 February 2019 the plaintiffs have not reasonably been able to accommodate an inspection. In any event, the uncertainty as to when the inspection would occur was resolved by the court. On three subsequent occasions the court made orders fixing dates for the inspection.
[38] The fixing of dates for the inspection was not inconsistent with the reason Whata J ordered the inspection, nor was it premature. In making that submission, Mr Cooper relied upon the defendant’s memorandum of 18 February 2019 where Mr Powell said the defendant wanted access to prepare a full consent package of documents for the rebuild. Mr Cooper asserts that is not the reason the defendant now wants access. The submission ignores the content of Whata J’s minute. It records that the defendant was to be allowed a further inspection “to review the reasonableness of the costs of the rebuild.”
[39] As Mr Powell submits, an inspection of the property will provide the defendant with important information relating to a range of disciplines impacting upon the ultimate cost of the rebuild. An inspection will also assist the defendant to assess and approve/decline claims for professional fees.
[40] Mr Cooper spent a good deal of time addressing me on the relevance of Gendall J’s judgment which he said “sets the tone” for the present application. He argues that an inspection of the property is not necessary for the determination of the “immediate and relevant matter” in dispute which is, he submits, the failure by the defendant to approve Warren and Mahoney’s fee proposal and comply with Gendall J’s judgment. He addressed me on the evidence that the plaintiffs have filed in support of their position that Warren and Mahoney’s fee proposal is reasonable and the absence
of evidence from the defendant to the contrary. The defendant should not be allowed an inspection to prepare any evidence, he argues, as it has failed to abide by Gendall J’s judgment and an inspection to prepare evidence is not contemplated by the process put in place. I do not accept these submissions.
[41] The matters in dispute are not limited to Warren and Mahoney’s fee proposal. That is a small aspect of the broader issue of the reasonable cost of the rebuild. It was towards the resolution of this issue that Whata J’s order was made.
[42] As far as disputes over professional fees are concerned, a process to resolve them has been put in place and, in respect of Warren and Mahoney’s fee proposal, the parties have engaged the process. Whether Warren and Mahoney’s fee proposal is reasonable is yet to be determined. It is the plaintiffs not the defendant who have prevented that process running its course.
[43] I do not accept the process Gendall J put in place does not contemplate the filing of evidence. The plaintiffs have filed evidence. I note the observation of Gendall J that quantity surveying evidence is required to determine if Warren and Mahoney’s fee proposal is reasonable “as a minimum”.15 Furthermore, the parties sought directions that contemplate the filing of evidence from quantity surveyors, who could be expected to have undertaken an inspection of the site. An inspection will assist in the determination of that application and should be allowed.
[44] The plaintiffs argue the inspection order of 14 November 2019 was made without due consideration for their efforts to obtain the defendant’s compliance with the judgment. This is not correct and is dealt with at [13] and [14] of my minute. The submission also assumes the defendant has not complied with the judgment which, as I note above, is yet to be determined.
[45] Mr Cooper then argues that an inspection order should not have been made except upon terms that are protective of the plaintiffs. Any force in the submission is lost because it is not the plaintiffs’ position that they will allow an inspection subject to appropriate conditions.
15 Ginivan v Southern Response Earthquake Services Ltd, above n 2, at [35].
[46] It is then submitted that the plaintiffs will suffer disadvantage from an inspection due to “entrenchment” of the defendant’s position or because the inspection is for an ulterior motive and a “Trojan Horse”. These submissions are abstruse and unfounded. In addition, I consider any such arguments are irrelevant given the plaintiffs acceptance of the validity of Whata J’s order.
[47] Finally, it was argued my conclusion that the plaintiffs have no intention of allowing an inspection was wrong. That finding was based on the history of the plaintiffs’ refusals to allow an inspection, Mr Ginivin’s evidence that the defendant is not entitled to another inspection and the steps taken to prevent it, including the issue of a trespass notice. There was sufficient evidence to support my finding.
[48] I do not consider the plaintiffs have established any arguable error of law or fact in my decision.
General or other importance
[49] The proposed appeal raises no issues of general or public importance. Contrary to Mr Cooper’s submission, if there is any public interest in how the courts resolve disputes over professional fees it was adequately addressed in Gendall J’s judgment. The proposed appeal is not concerned with that issue.
[50] More generally, the appeal does not raise any issues significant to the parties. This is because I do not accept the inspection is a significant imposition upon the plaintiffs. It was one they accepted under the terms of their insurance policy.
Delay
[51] I consider that delay is a relevant factor. This claim was filed in 2017 and since then it has been held up by procedural wrangling. It can be expected labour and materials costs will rise over any period of further delay. That is a cost the plaintiffs will expect the defendant to bear.
Interests of justice
[52] The plaintiffs are opposed to any inspection of their property. Their refusal to comply with the court’s orders is deliberate. The issue that was before me was how the court should respond. I obtained guidance from observations of the Court of Appeal in SM v LFDB where the court said:16
[26] The starting point is the objective in r 1.2 of the High Court Rules (the Rules) “to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application”. The case management regime now included (since 2008) in pt 7 of the Rules is designed to achieve that objective by isolating the issues and trying them fairly, swiftly and efficiently, with regard to what is at stake.
[27] Case management plainly matters to the immediate parties in any given case. It matters to litigants in other cases too, because it affects the time their cases will take to come to trial and influences their expectations of the Court; expectations matter because they influence the settlements in which the majority of civil proceedings end. And it matters to potential litigants – the public at large – because they should feel confident that the Court can try cases fairly, quickly and efficiently. From the perspective of a judge dealing with any given case, all these interests are relevant; all form part of the interests of justice.
[28] Obedience is the foundation upon which the Rules operate. From time to time the Court encounters a party who chooses not to obey, seeking perhaps to avoid accountability to the other party or to secure an unfair settlement. In such a case the interests of justice require that the Court do whatever is necessary to enforce obedience to its orders.
[29] Enforcement powers are found in r 7.48, which empowers a judge to respond to breach of a procedural order by making any order the judge thinks just. Rule 7.48(2) sets out examples of orders the judge may make. Although an “unless” order is not listed, it is now well-established that r 7.48 permits a judge to make one. As the name suggests, an unless order is peremptory; it decrees that unless the specified action is taken by the specified time, the stated sanction will result. An unless order takes effect automatically if it is not complied with. In other words, a party need not apply to enforce the order. Any confusion (and there appears still to be some) as to the automatic effect of an unless order should now be resolved, in light of Marcan Shipping. It follows that the appellant in this case need not have applied to Ellis J to enforce the second unless order.
[53] The court system will not function if litigants are able to ignore court directions. The interests of justice require the court to do what is necessary to enforce
16 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494.
its directions. There is no merit in the plaintiffs’ stance. Leave to appeal should not be granted.
Result
[54]The plaintiffs’ application for leave to appeal is dismissed.
[55] I direct that counsel should try to reach agreement on costs but if they cannot do so they are to file memoranda within 14 days of the date of this decision. Memoranda are not to exceed 5 pages.
O G Paulsen Associate Judge
Solicitors:
Cavell, Leitch, Christchurch Bell Gully, Auckland
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