Rupa v Bank of New Zealand

[2009] NZCA 11

IN THE COURT OF APPEAL OF NEW ZEALAND

CA76/2008
[2009] NZCA 11

BETWEENDILIP-KUMAR RUPA, SARDADEVI RUPA, REWA-KARA RUPA AND KOKILA RUPA

Appellants

ANDBANK OF NEW ZEALAND

Respondent

Court:William Young  P, Chambers and O'Regan JJ

Counsel:Dilip Rupa in person for Appellants

M J Tingey for Respondent

Judgment:13 February 2009 at 2.30 pm

(On the papers)

JUDGMENT OF THE COURT

PENDING FURTHER DIRECTION OF THE PRESIDENT, THE REGISTRY NEED NOT FURTHER PROCESS THE APPLICATION FOR A STAY AND THE “REQUEST FOR STRIKE OUT” (WHICH WE TREAT AS AN APPLICATION TO RECALL THE EARLIER JUDGMENT) IS DISMISSED.

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REASONS OF THE COURT

(Given by William Young P)

[1]       Since the substantive judgment of the Court was released last year, the appellants have sent a good deal of correspondence and other material to the Court.  This has been associated with their concerns about Wild J’s involvement with the case.  Wild J worked for Bell Gully & Co for around a year in 1969 – 1970 and again for around two years up to the end of March 1976.  A successor firm, Bell Gully, has acted for the Bank of New Zealand, the respondent, in the present litigation.  The appellants are of the view that Wild J should not have sat on the appeal without having first disclosed his association with Bell Gully & Co.  They regard the judgment as affected by bias.

[2]       This complaint is so plainly untenable as not to require discussion.  However, two particular documents which the appellants have sent to the Court do need to be addressed.

[3]       On 23 December 2008 the Court received by email an application for stay of execution.  The appellants have neither paid the required filing fee nor requested a waiver.  Counsel for the Bank of New Zealand has advised the Court that no application for leave to appeal has been lodged with the Supreme Court.  The jurisdiction under r 30 of the Supreme Court Rules 2004 to grant a stay is confined to circumstances where there is a pending application for leave (or an appeal).  So leaving aside the infelicitous way the application was filed (by email rather than in accordance with the appropriate rules) and the failure to pay, or otherwise address the requirement to pay, a filing fee, there is no jurisdiction to entertain the application.  It is accordingly dismissed.

[4]       The other document which must be addressed is styled “Request for Strike Out” and was lodged on 8 January 2009.  The document is unorthodox in form, to say the least, but it is best construed as an application to recall the judgment.  Pursuant to r 51(6) of the Court of Appeal (Civil) Rules 2005, we are entitled to deal with the application on the papers.  This we propose to do.  As the application is devoid of merit, it is dismissed.

Solicitors:
Bell Gully, Auckland for Respondent