Dovey Place Development Limited (in liquidation) v Rider Levett Bucknell Auckland Limited

IN THE COURT OF APPEAL OF NEW ZEALAND
CA583/2008
[2009] NZCA 133

BETWEENDOVEY PLACE DEVELOPMENTS LIMITED (IN LIQUIDATION)

Appellant

ANDRIDER LEVETT BUCKNALL AUCKLAND LIMITED

Respondent

Hearing:7 April 2009

Court:Chambers, Arnold and Baragwanath JJ
Counsel:C G S Nisbet in Person

G D Wadsworth for Respondent

Judgment:7 April 2009

JUDGMENT OF THE COURT

A        THE APPEAL IS STRUCK OUT FOR WANT OF JURISDICTION.
B        NO ORDER AS TO COSTS.
REASONS OF THE COURT
(Given by Chambers J)
[1]       Mr Nisbet has purported to bring to this court an appeal against an order striking out his proceeding in the High Court. That order striking out his proceeding was made by an Associate Judge. It is well established that Associate Judges’ decisions on strike-out applications are not appealable to this court but are dealt with on review by the High Court: see ss 26J and 26P of the Judicature Act 1908 and New Zealand Defence Force v Berryman [2008] NZCA 392 at [4] and Vero Liability Insurance Limited v Symphony Group Limited and others [2008] NZCA 419 at [3].
[2]       Mr Wadsworth, for Rider Levett Bucknall Auckland Limited, the respondent, had not appreciated this jurisdictional problem. He had applied to strike-out the proceedings on other grounds. We do not need to get into those as we are satisfied that this court lacks jurisdiction to deal with the matter.
[3]       Accordingly, if Mr Nisbet is to take this matter further he would need to apply for leave out of time to review the Associate Judge’s decision in the High Court. Nothing in this judgment is to be taken as encouragement for that step. We express no view at all as to whether Mr Nisbet is entitled to be acting on behalf of Dovey Place Developments Limited (in liquidation). All we are saying is that this court does not have jurisdiction to entertain his purported appeal.
[4]       In the circumstances of the company being in liquidation, and Mr Nisbet being a bankrupt, there will be no order as to costs.
Solicitors:
Kennedys, Auckland, for Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal by Dovey Place Developments Limited (in liquidation) against Rider Levett Bucknell Auckland Limited. The appellant, represented by Mr Nisbet in person, sought to appeal an order from an Associate Judge that had struck out its proceeding in the High Court. The respondent was represented by Mr Wadsworth. The appeal was heard on April 7, 2009, and judgment was delivered on the same day.

The primary legal issue before the Court was whether it had the jurisdiction to entertain the appeal against the Associate Judge's decision to strike out the proceeding in the High Court. Under sections 26J and 26P of the Judicature Act 1908, Associate Judges' decisions on strike-out applications are not appealable to the Court of Appeal but are subject to review by the High Court. This principle was confirmed in cases such as New Zealand Defence Force v Berryman and Vero Liability Insurance Limited v Symphony Group Limited.

Given this jurisdictional limitation, the Court found that it did not have the authority to hear the appeal. The Court made it clear that if Mr Nisbet wished to pursue the matter further, he would need to apply for leave out of time to review the Associate Judge’s decision in the High Court. The Court emphasized that its decision should not be construed as an encouragement for such an application. Additionally, the Court made no determination regarding Mr Nisbet's authority to act on behalf of Dovey Place Developments Limited (in liquidation). The Court concluded that it lacked jurisdiction to entertain the appeal, and therefore, no order was made as to costs, considering the liquidation status of the company and Mr Nisbet's bankruptcy.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established