LUSTY & BLUNDELL LTD V A LUSTY AND ANOR HC AK CIV 2006-404-4237

LUSTY & BLUNDELL LTD V A LUSTY AND ANOR HC AK CIV 2006-404-4237

The court held that a pre‑proceeding discovery application under r301 is an interlocutory application not a 'proceeding' for the purposes of r131; therefore the defendants' appearance under protest was ineffective and premature and must be set aside, and the r301 process should proceed with directions including...

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Citation
openlaw-0d01d410_d05b_425a_97fb_fa51aaf6857f.pdf
Parties
Intending Plaintiff: Lusty and Blundell Limited; Intending First Defendant: Andrew Lusty; Intending Second Defendant: Murray Morten
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 October 2006
Procedural Posture
Application for Pre‑proceeding Discovery (high Court Rule 301) / Interlocutory Application to Set Aside Protest to Jurisdiction
Outcome
Protest to jurisdiction set aside as ineffective and premature; interlocutory directions issued
Legal Topics
Pre‑proceeding Discovery, Jurisdiction, Appearance Under Protest, Duties of Loyalty and Good Faith
Civil Procedure Employment Law Commercial Law Pre‑proceeding Discovery Jurisdiction Appearance Under Protest Duties of Loyalty and Good Faith

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Parties

Lusty and Blundell Limited

Intending Plaintiff

Andrew Lusty

Intending First Defendant

Murray Morten

Intending Second Defendant

Procedural Posture

Application for Pre‑proceeding Discovery (high Court Rule 301) / Interlocutory Application to Set Aside Protest to Jurisdiction

Legal Issues

  1. 1 Whether an application under r301 is a 'proceeding' for purposes of r131
  2. 2 Whether an appearance filed under r131 in response to an interlocutory r301 application is effective
  3. 3 Whether the defendants' protest to jurisdiction should be set aside as premature

Ratio Decidendi

The court held that a pre‑proceeding discovery application under r301 is an interlocutory application not a 'proceeding' for the purposes of r131; therefore the defendants' appearance under protest was ineffective and premature and must be set aside, and the r301 process should proceed with directions including filing a draft statement of claim and timetabling of opposition and hearing.

Court Disposition

Protest to jurisdiction set aside as ineffective and premature; interlocutory directions issued

Orders

  • The protest to jurisdiction by the intended defendants is set aside as ineffective and premature.
  • The intending plaintiff is to file a draft statement of claim and an amended application for pre‑proceeding discovery (if necessary) by 25 October 2006.