JEC no 2 Limited v Official Assignee at Hamilton

[2014] NZHC 394

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-904

CIV-2012-419-907 [2014] NZHC 394

UNDER  the Judicature Act 1908 and the High

Court Rules

IN THE MATTER             of an application pursuant to section

26P(1) and an application pursuant to rule

2.3

BETWEEN  JEC NO 2 LIMITED First Applicant

ANDJEC NO 3 LIMITED Second Applicant

ANDTHE OFFICIAL ASSIGNEE AT HAMILTON

Respondent

Hearing:                   5 March 2014 (by telephone)

Appearances:           S M Spackman and C L Fawcett for Applicants

P V Cornege for Respondent

Judgment:                7 March 2014

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 7 March 2014 at 2 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Counsel:            P V Cornege, Hamilton

Copy for:           Applicants

JEC NO 2 LTD v OFFICIAL ASSIGNEE [2014] NZHC 394 [7 March 2014]

[1]      The Applicants (“JEC”) seek leave to appeal to the Court of Appeal against a judgment that I gave in this matter on 20 December 2013, following a hearing on

10 December 2013.1

[2]      The affidavits that JEC has filed in support of the application for leave are to the effect that JEC also seeks a stay, so I shall proceed on the basis that too is sought. The Respondent (“OA”) opposes both applications.

[3]      At JEC’s request I convened a hearing of their applications by telephone and heard the parties’ submissions.

[4]      My 20 December 2013 judgment concerned applications by JEC:

(a)      For an enlargement of time to file a review of a decision given by Associate Judge Faire (as he then was) in June 2013.2   An application for review is required to be filed  and served  within five working days.3   In fact, the application was not filed until 24 September 2013, and so was more than three months out of time.

(b)      For review itself, if the enlargement were granted.

[5]      I declined the application referred to in (a) above and so was not required to determine the application for review.  Given that, the only decision that can now be the subject of an appeal is the refusal to grant the enlargement of time.

[6]      An appeal to the Court of Appeal against such a refusal may be brought as of right pursuant to s 66 Judicature Act 1908.  Such an appeal does not require leave to appeal.

[7]      If JEC wishes to file a notice of appeal to the Court of Appeal against my refusal to enlarge time, then it should do so promptly.  If JEC’s time for doing so as

of right has expired, then I ask the Court of Appeal to note that there was delay in the

1 JEC No 2 Ltd v Official Assignee [2013] NZHC 3544.

2 JEC No 2 Ltd v Official Assignee [2013] NZHC 1352.

3 High Court Rules, r 2.3(2)(a).

papers filed in  the  Hamilton  Registry during  the vacation  being brought  to  the

Court’s attention in Auckland.

[8]      I decline to grant JEC’s application for stay.  It remains for the OA to settle the sale of the property at 123 Albert Street, Hamilton, as it is contractually bound to do.  I record, however, the OA’s undertaking to continue to hold the proceeds of sale of all properties in trust and not disburse the same pending agreement or further order of the Court.

[9]      The OA is entitled to costs on the application for stay on a 2B basis, together with any disbursements.

..................................................................

M Peters J