TITO V TITO AND ANDREW COA CA856/2011
The stay application was dismissed because no date had been fixed for the general meeting and the applicant's position was not imminently threatened; r 12(3) did not provide the power relied on but the Court treated the application as if made under r 30(2) Supreme Court Rules 2004 and concluded a stay was...
Source-derived case information.
- Citation
- TITO V TITO AND ANDREW COA CA856/2011
- Parties
- Applicant: Kevin Tito; Respondent: Aroha Tito; Respondent: John Andrew
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 14 February 2013
- Procedural Posture
- Application for Stay Pending Appeal to Supreme Court / Interlocutory (on the Papers)
- Outcome
- Application for a stay dismissed; leave granted to renew application; no order as to costs
- Legal Topics
- Stay of Proceedings, Interim Trustees, General Meeting of Owners, Leave to Appeal to Supreme Court, Jurisdiction Under Court Rules
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kevin Tito
Applicant
Aroha Tito
Respondent
John Andrew
Respondent
Procedural Posture
Application for Stay Pending Appeal to Supreme Court / Interlocutory (on the Papers)
Legal Issues
- 1 Whether this Court should grant a stay of proceedings pending the applicant's application for leave to appeal to the Supreme Court
- 2 Whether r 12(3) Court of Appeal (Civil) Rules 2005 confers power to stay proceedings pending a Supreme Court appeal or the correct rule is r 30(2) Supreme Court Rules 2004
- 3 Whether a stay is necessary to preserve the applicant's position pending determination of the leave application or the fixing of a meeting date
Ratio Decidendi
The stay application was dismissed because no date had been fixed for the general meeting and the applicant's position was not imminently threatened; r 12(3) did not provide the power relied on but the Court treated the application as if made under r 30(2) Supreme Court Rules 2004 and concluded a stay was unnecessary while preserving the applicant's right to renew the application if leave to appeal is granted or a meeting date becomes imminent.
Court Disposition
Application for a stay dismissed; leave granted to renew application; no order as to costs
Orders
- Application for a stay is dismissed.
- Leave granted to Mr Tito to renew his application for a stay should the Supreme Court grant him leave to appeal or a date for the general meeting of owners become imminent.
Full Case Text
Judgment text and source record
1 paragraphs
TITO V TITO AND ANDREW COA CA856/2011 [14 February 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA856/2011[2013] NZCA 7BETWEEN KEVIN TITOApplicantAND AROHA TITO AND JOHN ANDREWRespondentsCourt: Randerson, French and Venning JJCounsel: Applicant in personT Phillips as McKenzie FriendRespondents in personJudgment: 14 February 2013 at 10.00 am(On the papers)JUDGMENT OF THE COURTA The application for a stay is dismissed.B Leave is granted to Mr Tito to renew his application for a stay should the Supreme Court grant him leave to appeal or a date for the general meeting of owners become imminent.C There will be no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] On 29 October 2012, this Court issued a judgment1 dismissing Mr Tito'sappeal against the decision of the Māori Appellate Court.2 The decision concerned1 Tito v Tito [2012] NZCA 4932 Tito – Mangakahia 2B2-No 2A1A (2011) Māori Appellate Court MB 86.the appointment of interim trustees in the Mangakahia 2B2 No 2A1A Ahu WhenuaTrust. This Court upheld the validity of the trustee appointments made by the MāoriAppellate Court and extended the time for holding a general meeting of owners forthree months. We also ordered that the Māori Land Court was to issue directions asto the manner in which the general meeting of owners was to be convened and conducted.[2] Dissatisfied with that outcome, Mr Tito filed an application on 15 January 2013 in the Supreme Court for leave to appeal.[3] On 4 February 2013 Mr Tito filed an application in this Court seeking a stay of proceedings pending the outcome of his appeal to the Supreme Court. The stay application has been prompted by concerns about the holding of the general meeting which under the terms of our judgment was to have been held before 28 January 2013. Although the meeting has not yet taken place3, the Māori Land Court hasindicated it will proceed as directed unless a stay is ordered.[4] The stay application, which is opposed, is expressed to be made under r 12(3) of the Court of Appeal (Civil) Rules 2005. However, r 12(3) does not confer any power on this Court to stay proceedings pending an appeal to the Supreme Court. Such a power is however conferred under r 30(2) of the Supreme Court Rules 2004 and we are accordingly willing to treat the application as having been made under that rule.[5] In our view, at this juncture a stay is not necessary in order to preserve Mr Tito's position. No date has yet been agreed for the general meeting and it islikely the Supreme Court will shortly determine the leave application. If Mr Tito is denied leave, then that is the end of the matter. If on the other hand, leave is granted, or a date for the general meeting is imminent, then the application for stay could be renewed.3 A date was apparently fixed for November, but was later abandoned because the Māori LandCourt had not issued its directions.[6] The application for a stay is accordingly dismissed, with leave granted to Mr Tito to renew his application for a stay should the Supreme Court grant him leave to appeal or a date for the general meeting of owners become imminent.[7] There will be no order for costs.