DILIP-KUMAR RUPA, SARDADEVI RUPA, REWA-KARA RUPA AND KOKILA RUPA V BANK OF NEW ZEALAND CA CA76/2008
The stay application was dismissed for lack of jurisdiction under r 30 of the Supreme Court Rules 2004 and for procedural defects (improper filing and non-payment of filing fee); the complaint of bias based on the judge's historical association with a firm that had acted for the respondent was plainly untenable; the...
Source-derived case information.
- Citation
- openlaw-5fe2d657_5fdc_4cd6_a8f4_8a8ede3c7786.pdf
- Parties
- Appellant: Dilip-Kumar Rupa; Appellant: Sardadevi Rupa; Appellant: Rewa-Kara Rupa; Appellant: Kokila Rupa; Respondent: Bank of New Zealand
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 13 February 2009
- Procedural Posture
- Civil Appeal / Post Judgment Applications for Stay and Recall (on the Papers)
- Outcome
- Applications dismissed
- Legal Topics
- Stay of Execution, Recall of Judgment, Disclosure and Recusal, Filing Requirements
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dilip-Kumar Rupa
Appellant
Sardadevi Rupa
Appellant
Rewa-Kara Rupa
Appellant
Kokila Rupa
Appellant
Bank of New Zealand
Respondent
Procedural Posture
Civil Appeal / Post Judgment Applications for Stay and Recall (on the Papers)
Legal Issues
- 1 Whether a past association of a judge with a law firm required disclosure or warranted recusal for bias
- 2 Whether the Court had jurisdiction to grant a stay under r 30 of the Supreme Court Rules 2004 in the absence of a pending application for leave or an appeal
- 3 Whether the application to recall the Court's judgment (styled as "Request for Strike Out") was properly made and meritorious
Ratio Decidendi
The stay application was dismissed for lack of jurisdiction under r 30 of the Supreme Court Rules 2004 and for procedural defects (improper filing and non-payment of filing fee); the complaint of bias based on the judge's historical association with a firm that had acted for the respondent was plainly untenable; the application construed as one to recall the judgment was unmeritorious and dismissed; the registry need not further process the applications pending directions from the President.
Court Disposition
Applications dismissed
Orders
- Pending further direction of the President, the registry need not further process the application for a stay and the request for strike out
- The application for a stay of execution is dismissed
Full Case Text
Judgment text and source record
1 paragraphs
DILIP-KUMAR RUPA, SARDADEVI RUPA, REWA-KARA RUPA AND KOKILA RUPA V BANK OF NEW ZEALAND CA CA76/2008 13 February 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA76/2008 [2009] NZCA 11BETWEEN DILIP-KUMAR RUPA, SARDADEVI RUPA, REWA-KARA RUPA AND KOKILA RUPA Appellants AND BANK 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.____________________________________________________________________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 againfor 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