CALIBRE FINANCIAL SERVICES V MORTGAGE ADMINISTRATION SERVICES (CALIBRE) LTD COA CA538/2012
Leave to appeal was granted because the Court was satisfied there is a question of law capable of serious argument about the interpretation of the indemnity clause, lower courts reached different conclusions, and the issue has sufficient importance to outweigh the cost and delay of a further appeal.
Source-derived case information.
- Citation
- COA CA538/2012
- Parties
- Applicant: Calibre Financial Services Ltd; First Respondent: Mortgage Administration Services (Calibre) Ltd; Second Respondent: Cairns Lockie Limited (in liquidation)
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 27 November 2012
- Procedural Posture
- Application for Leave to Appeal to the Court of Appeal / Leave Application
- Outcome
- leave to appeal granted
- Legal Topics
- Leave to Appeal, Contract Interpretation, Indemnity Clause, Appeal Under S 67 Judicature Act
Source-derived case record
Summary, issues, holding and outcome
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Parties
Calibre Financial Services Ltd
Applicant
Mortgage Administration Services (Calibre) Ltd
First Respondent
Cairns Lockie Limited (in liquidation)
Second Respondent
Procedural Posture
Application for Leave to Appeal to the Court of Appeal / Leave Application
Legal Issues
- 1 Whether there is a question of law capable of serious argument for the purposes of s 67 leave
- 2 Whether the indemnity clause in the securitisation agreement is limited to a specified type of expense or constitutes a broader attribution of risk
- 3 Whether conflicting conclusions at district and High Court levels justify further appellate consideration
Ratio Decidendi
Leave to appeal was granted because the Court was satisfied there is a question of law capable of serious argument about the interpretation of the indemnity clause, lower courts reached different conclusions, and the issue has sufficient importance to outweigh the cost and delay of a further appeal.
Court Disposition
leave to appeal granted
Orders
- Leave to appeal granted
- Costs on this application for leave reserved to the Court that hears the substantive appeal
Full Case Text
Judgment text and source record
1 paragraphs
CALIBRE FINANCIAL SERVICES V MORTGAGE ADMINISTRATION SERVICES (CALIBRE) LTD COA CA538/2012 [27 November 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA538/2012[2012] NZCA 548BETWEEN CALIBRE FINANCIAL SERVICESLIMITEDApplicantAND MORTGAGE ADMINISTRATIONSERVICES (CALIBRE) LIMITEDFirst RespondentAND CAIRNS LOCKIE LIMITED (INLIQUIDATION)Second RespondentHearing: 23 October 2012Court: Arnold, Ellen France and French JJCounsel: P L Rice for ApplicantS O McAnally for RespondentsJudgment: 27 November 2012 at 10.30 amJUDGMENT OF THE COURTA Leave to appeal against the decision of the High Court dated 18 April 2012 is given.B Costs on this application for leave reserved.____________________________________________________________________REASONS OF THE COURT(Given by Ellen France J)[1] Calibre Financial Services Ltd (Calibre), the applicant, succeeded in its claim against Mortgage Administration Services (Calibre) Ltd and Cairns Lockie Ltd(in liquidation) in the District Court.1 However, Mortgage Administration's appealto the High Court was successful.2 In order to further appeal, Calibre needs leave, either from the High Court or from this Court.3 Peters J declined leave in a judgment delivered on 2 August 2012.4 Calibre then sought leave from this Court.[2] We have determined that leave should be given. Under r 27(2)(b) of the Court of Appeal (Civil) Rules 2005, this Court is not required to give reasons for giving leave.5 The applicable test on a s 67 leave application is well established.6We are satisfied that Calibre has shown that there is a question of law in this case which is capable of serious argument. We are also satisfied the case does involve interests of sufficient importance to outweigh the cost and delay of a further appeal.[3] It is noteworthy in terms of the s 67 test that Judge Sinclair in the District Court and Peters J in the High Court reached different conclusions on the interpretation of the agreement entered into between Calibre and Mortgage Administration as part of securitisation arrangements. We are persuaded there is a real question as to whether the indemnity clause in the agreement exposed Mortgage Administration to a limited kind of expense or was a broader attribution of risk. Although the amount directly in issue is not significant, the interpretation issue may have a broader impact on other issues between the parties and, possibly, more generally.[4] It is appropriate that costs on the application for leave be reserved. They can be determined by the Court that hears the substantive appeal.Solicitors:Sanderson Weir, Auckland for ApplicantKeegan Alexander, Auckland for Respondents1 Calibre Financial Services Ltd v Mortgage Administration Services (Calibre) DC AucklandCIV-2009-004-3175, 31 May 2011.2 Mortgage Administration Services (Calibre) Ltd v Calibre Financial Services Ltd [2012] NZHC732.3 Judicature Act 1908, s 67.4 Mortgage Administration Services (Calibre) Ltd v Calibre Financial Services Ltd [2012] NZHC1921.5 See, for example: Catley v Perry Developments CA68/05, 17 June 2005 and Rose v RoseCA26/06, 2 August 2006.6 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.