Kane v Body Corporate 325261

[2020] NZCA 439

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA452/2020
 [2020] NZCA 439

BETWEEN	MARY PATRICIA KANE Appellant
AND	BODY CORPORATE 325261 Respondent

Counsel:	T J G Allan and K M Wakelin for Appellant No appearance for Respondent
Judgment: (On the papers)	21 September 2020 at 11.00 am

JUDGMENT OF COLLINS J
(Review of Deputy Registrar’s decision)

The application for review of the Deputy Registrar’s decision is declined. 

____________________________________________________________________

REASONS

1. Ms Kane seeks a review of the Deputy Registrar’s decision declining to accept part of her notice of appeal for filing. 

Background

1. Body Corporate 325261 (the Body Corporate) is the registered proprietor of and body corporate for a number of apartments.  Ms Kane was a shareholder and director of the company, now wound up, that previously was the registered proprietor of the apartments.  Ms Kane asserts that there are outstanding amounts owing to her secured by a mortgage over these apartments, assigned to her from ASB bank.  The Body Corporate maintains that it was not meant to be registered as the registered proprietor until the mortgage was discharged.  Ms Kane unilaterally registered the vesting order giving it ownership without its consent or knowledge.

2. Both parties applied to the High Court for summary judgment.  On 17 July 2020 Associate Judge Andrew gave summary judgment for the Body Corporate and declined the application to give summary judgment for Ms Kane.[1] 

The Deputy Registrar’s decision

[1]Kane v Body Corporate 325261 [2020] NZHC 1736 [High Court judgment].

1. On 13 August 2020, Ms Kane filed an appeal against the Associate Judge’s judgment.  On appeal she seeks:

   (a)leave to amend her statement of claim to include a second cause of action;

   (b)an order overturning the dismissal of her application for summary judgment;

   (c)an order overturning the grant of summary judgment for the Body Corporate; and

   (d)judgment on one or both of her causes of actions, or alternatively an order remitting the proceeding to the High Court for the matter to proceed to trial. 

2. The Deputy Registrar accepted the notice of appeal for filing so far as it related to the granting of the Body Corporate’s application for summary judgment, and rejected it for filing so far as it related to the declining of Ms Kane’s application for summary judgment.  This was because a right of appeal to this Court only lies in respect of a decision granting summary judgment.[2]  An appeal against a decision declining summary judgment requires leave from the High Court, or from this Court if the High Court declines leave.[3] 

   [2]Senior Courts Act 2016, s 56(4)(b). 

   [3]Section 56(3) and (5).

3. Ms Kane seeks a review of the Deputy Registrar’s decision not to accept parts of the notice of appeal for filing.[4]  She submits that the remainder of the notice of appeal falls under s 56(4) of the Senior Courts Act 2016, which provides a right of appeal to this Court where a decision of the High Court strikes out or dismisses “the whole or part of a proceeding, claim, or defence”. 

Analysis

[4]Court of Appeal (Civil) Rules 2005, r 5A(3).

1. An application for summary judgment is an interlocutory application.[5]  Leave from the High Court, or from this Court if the High Court refuses to grant leave, is required to bring an appeal against a decision of the High Court on an interlocutory application.[6]

   [5]High Court Rules 2016, r 12.4(1).

   [6]Senior Courts Act, s 56(3) and (5).

2. Section 56(4) of the Senior Courts Act provides two exceptions to this requirement:

   Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—

   (a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or

   (b)       granting summary judgment.

3. These two exceptions apply when interlocutory applications are no longer “interlocutory” as they have in effect brought the proceedings, in whole or in part, to an end.[7] 

   [7]Section 4 of the Senior Courts Act defines “interlocutory applications” as any application in proceedings for “an order or a direction relating to a matter of procedure” or “in the case of civil proceedings, for some relief ancillary to that claimed in a pleading”. 

4. Ms Kane’s sole cause of action was that the Body Corporate was liable under the mortgage, pursuant to s 203 of the Property Law Act 2007.[8]  This has been brought to an end due to the Body Corporate successfully obtaining summary judgment.[9]  Absent this, a failure to obtain summary judgment in her favour would not have halted the proceedings, rather this would have only been an interlocutory step in the proceedings.

   [8]High Court judgment, above n 1, at [45].

   [9]High Court Rules, r 12.2(2). 

5. Therefore Ms Kane is correct that, in the broad sense, her proceedings have been dismissed.  However, the decision not to grant summary judgment in her favour did not achieve this state of affairs.  It was the grant of summary judgment in favour of the defendant, which is the decision Ms Kane is able to appeal from without having to seek leave.  There is no right of appeal created by virtue of the cross‑applications for summary judgment.

6. The Deputy Registrar’s decision is correct.  Ms Kane does not have a right of appeal in respect of the refusal to grant summary judgment. 

Result

1. The application for review of the Deputy Registrar’s decision is declined.

Solicitors:
Grove Darlow & Partners, Auckland for Appellant