TSB BANK LIMITED V BURGESS HC CHCH CIV-2010-009-002978

TSB BANK LIMITED V BURGESS HC CHCH CIV-2010-009-002978

The Court exercised its discretion under r 1.19 High Court Rules and s 82(1) CER Act to extend the filing time for the third party notice to the date the Registry physically received the documents (3 November 2011), finding injustice would result if the mailing/courier-only filing regime during the earthquake period were treated as an open registry for time computation; accordingly the late third party notice was validated and a timetable and abridged periods for any strike out and defences were ordered.

Citation
openlaw-19cc5e6d_5fbe_4b7e_bb69_4dd436fe4faa.pdf
Parties
Plaintiff/respondent: TSB Bank Limited; Defendant/applicant: Gary Owen Burgess
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 March 2013
Procedural Posture
Civil Proceeding Application Concerning Validity of Third Party Notice and Extension of Time / Interlocutory Applications: Review of Chambers Minute and Alternative Application for Leave to Issue Third Party Notice; Directions Hearing
Outcome
Extension of time granted for filing third party notice; third party notice treated as filed on 3 November 2011; directions and abridged timetables ordered
Legal Topics
Extension of Time, Third Party Notice/joinder, Registry Hours and Filing, Strike Out, Jurisdictional Overlap With Family Court
Civil Procedure Family Law Statutory Interpretation (earthquake Recovery) Extension of Time Third Party Notice/joinder Registry Hours and Filing Strike Out Jurisdictional Overlap With Family Court

Case Brief

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Parties

TSB Bank Limited

Plaintiff/respondent

Gary Owen Burgess

Defendant/applicant

Procedural Posture

Civil Proceeding Application Concerning Validity of Third Party Notice and Extension of Time / Interlocutory Applications: Review of Chambers Minute and Alternative Application for Leave to Issue Third Party Notice; Directions Hearing

Legal Issues

  1. 1 Whether the Christchurch Registry was 'open' for computation of time such that the third party notice was out of time
  2. 2 Whether the Court could extend time to file the third party notice under r 1.19 High Court Rules and s 82(1) Canterbury Earthquake Recovery Act 2011
  3. 3 Whether the proposed third party claim was within the exclusive jurisdiction of the Family Court and/or rendered hopeless by the Supreme Court decision

Ratio Decidendi

The Court exercised its discretion under r 1.19 High Court Rules and s 82(1) CER Act to extend the filing time for the third party notice to the date the Registry physically received the documents (3 November 2011), finding injustice would result if the mailing/courier-only filing regime during the earthquake period were treated as an open registry for time computation; accordingly the late third party notice was validated and a timetable and abridged periods for any strike out and defences were ordered.

Court Disposition

Extension of time granted for filing third party notice; third party notice treated as filed on 3 November 2011; directions and abridged timetables ordered

Orders

  • The time for filing the third party claim and associated documents is extended to 3 November 2011
  • The defendant is to serve the third party and associated documents including those identified under r 4.12 and a copy of this judgment on the third party by 5 April 2013