Raine & Horne New Zealand Pty Limited v Normans Road Real Estate Limited

[2025] NZCA 204

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA663/2024
 [2025] NZCA 204

BETWEEN	RAINE & HORNE NEW ZEALAND PTY LIMITED Appellant
AND	NORMANS ROAD REAL ESTATE LIMITED First Respondent KRISTINA JANICE BRIGGS Second Respondent TINA & CO REAL ESTATE LIMITED Third Respondent

Court:	Ellis and Hinton JJ
Counsel:	S A Grant for Appellant N Burley for First, Second and Third Respondents
Judgment: (On the papers)	30 May 2025 at 10.00 am

JUDGMENT OF THE COURT
(COSTS)

Raine & Horne are to pay costs to the respondents for a half day standard appeal on a Band A basis. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

1. On 19 March 2025, we struck out a proposed appeal by Raine & Horne,[1] who had sought to challenge a decision of the High Court in which their application for an interim injunction was declined.[2]  The proposed appeal was struck out for want of jurisdiction because the High Court decision was interlocutory and any appeal required the prior grant of leave by either the High Court or this Court. 

   [1]Raine & Horne New Zealand Pty Ltd v Normans Road Real Estate Ltd [2025] NZCA 59 [CA judgment].

   [2]Raine & Horne New Zealand Pty Ltd v Normans Road Real Estate Ltd [2024] NZHC 2706 [HC judgment].

2. The registry of this Court had alerted Raine & Horne to the requirement for leave but Raine & Horne maintained its position that leave was not required.  The matter was then referred to Cooke J for direction.  On 1 October 2024, he minuted:[3]

   [2]       I accept that there is an issue whether leave to appeal is required under s 56(3) of the Senior Courts Act 2016 given the definition of “interlocutory application” contained in s 3.  I note, however, that there are a number of authorities that have proceeded on the basis that leave to appeal is required for appeals from interim injunction decisions, although the points made by the applicant have not been substantively addressed.  The recognised exception is decisions on interlocutory applications that are dispositive and which fall within s 56(4).

   [3]Raine & Horne New Zealand Pty Ltd v Normans Road Real Estate Ltd CA Nil, 1 October 2024 (Minute of Cooke J) (footnotes omitted).

3. Cooke J directed that, unless Raine & Horne sought leave from the High Court, the issue of whether this Court has jurisdiction to hear the appeal without leave was to be heard and determined on the papers.  Raine & Horne did not seek leave from the High Court and so the issue was then referred to two Judges for determination on the papers.  The parties filed submissions.

4. The subsequent judgment recorded that:

   (a)the question turns largely on a straightforward interpretation of s 56(3) of the Senior Courts Act 2016, and the associated s 4 definition of “interlocutory application”;[4]

   (b)while the issue might not have been squarely confronted by the courts before, the sheer number of cases in which it has been “assumed” that leave to appeal is required underscored the obviousness of the point;[5] and

   (c)the single case relied on as suggesting that leave was not required did not address the issue.[6]

   [4]CA judgment, above n 1, at [15].

   [5]At [16].

   [6]At [13] and [19].

5. The judgment expressed the view that costs should follow the event in the usual way.[7]  But because the parties had not addressed costs, they were given the opportunity to file further submissions, which they have since done.  Raine & Horne say costs should lie where they fall.  The respondents disagree. 

Discussion

[7]At [22], citing Court of Appeal (Civil) Rules 2005, rr 53A(1)(a) and 53G(1).

1. We are unpersuaded that we should depart from the orthodox position.  Raine & Horne chose to pursue the point in the face of advice from the registry, the clear statutory language and the weight of the decided cases.  We do not consider it can be said there was a “genuine lack of clarity”.  An alternative pathway (applying for leave, as indicated in Cooke J’s minute) was available to them.  The respondents were put to the cost of filing submissions.

2. We consider an award of costs on a Band A basis for 0.5 days, as proposed by counsel for the respondents, to be entirely reasonable and we make an order that Raine & Horne pay costs in that amount accordingly.[8] 

Result

[8]See Court of Appeal (Civil) Rules, r 53D(1)(b).

1. Raine & Horne are to pay costs to the respondents for a half day standard appeal on a Band A basis. 

Solicitors:
Stewart Germann Law Office, Auckland for Appellant
Saunders & Co, Christchurch for Respondents