Nga Uri Whakatipurunga O Ngarae (Inc) v Marac Finance Limited HC Auckland CIV 2008-404-6180

[2010] NZHC 2037

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-6180

IN THE MATTER OF     Section 145A of the Land Transfer Act

1952 and the Te Ture Whenua Maori Act

1993

AND

IN THE MATTER OF     An application by Nga Uri Whakatipurunga O Ngarae (Inc) for an order that caveat not lapse

BETWEEN  NGA URI WHAKATIPURUNGA O NGARAE (INC)

Applicant

ANDMARAC FINANCE LIMITED Respondent

Hearing:         22 September 2010

Counsel:         T Darby for Mr Fonua

J M J Tiang for Respondent

Judgment:      22 September 2010 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an application for removal of a stay which was granted by this Court in respect of an order made by Associate Judge Abbott that indemnity costs in favour of the respondent be paid by Mr Fonua, solicitor, and the barrister who appeared on his instructions personally.

[2]      An application was brought by Mr Fonua for a review of that costs order. MARAC then applied for an order transferring the matter to the Court of Appeal on

the basis that there was some similar but unrelated litigation involving a costs order

NGA URI WHAKATIPURUNGA O NGARAE (INC) V MARAC FINANCE LIMITED HC AK CIV-2008-

404-6180  22 SEPTEMBER 201 22 September 2010

made in favour of Westpac against Mr Fonua in another case which was being considered by the Court of Appeal.  Counsel for Mr Fonua opposed that application and it was heard by Clifford J in November 2009.  In the course of the hearing of that application the Judge raised the issue of whether the appropriate means of challenging  Judge Abbott’s  costs  decision  was  a  review  under  s 26P  of  the Judicature Act or by way of appeal.  He considered that issue at some length in a considered reserved judgment and he reached the conclusion that the appropriate remedy was an appeal to the Court of Appeal not review by this Court.  He therefore dismissed the application to transfer the application for review into the Court of Appeal.  He said:

[69]I have found that in order to challenge Associate Judge Abbott’s costs decision, Mr Fonua must exercise a right of appeal.   On that basis his application under s 26P(1) must be dismissed.   It would therefore appear necessary for Mr Fonua to apply to the Court of Appeal for special leave, his appeal otherwise being out of time.

[3]      Notwithstanding  that  statement  that  the  application  must  be  dismissed Mr Darby for Mr Fonua contends that the review application is still extant and must be heard.  No steps have been taken in the nine months which have elapsed since Clifford J’s decision either to seek to bring on for hearing the application for review which is said to be still extant or to apply for leave to appeal.  Mr Darby explains that the reason for that is the related litigation involving Westpac which has been heard by the Court of Appeal and he submits that matters should remain as they are until judgment is delivered in that matter.  Counsel for MARAC opposes that course and seeks a lifting of the stay now.

[4]      I have formed the view that the stay should be removed.  I consider that there has  been  ample  opportunity  and  time  to  take  any  further  steps  which  may  be required.  I consider that Clifford J’s judgment is clear in finding that the application under s 26P must be dismissed, so that it is no longer extant and available for hearing.  That application no longer provides any basis for the continuation of a stay. No application has been made for leave to appeal.  Any appeal would now be well out of time and leave would accordingly be necessary before an appeal could be brought  either  against  Judge Abbott’s  decision  on  costs  or  against  Clifford J’s decision  that  the  appropriate  remedy  is  one  of  appeal.    I  consider  that  on  the

proceedings currently before the Court there is no longer any basis on which a stay should continue.  If any steps were taken to seek leave to appeal either decision, then that would be a matter for the Court of Appeal.  So far as matters stand in this Court I consider that there is no basis for continuation of the stay and the stay will be removed.

[5]      Mr Darby has requested that the order that I have just made should lie in Court for a period sufficient for him to take further steps.  The order will lie in Court until 5pm on Wednesday 29 September.  That is one week.

[6]      As to costs on this application counsel for MARAC seeks indemnity costs.  I

would not be prepared to make an order for indemnity costs without an opportunity for further submissions.  Costs are reserved and the parties may submit memoranda.

A D MacKenzie J

Solicitors:           T J Darby, P O Box 90959, Wellesley Street West, Auckland 1142 for Applicant Grove Darlow & Partners, P O Box 2882, Shortland Street, Auckland 1140 for Respondent