KIWI BROILERS 2003 LIMITED V AIREY CONSULTANTS LIMITED & ANOR HC AK CIV 2008-404-005341

KIWI BROILERS 2003 LIMITED V AIREY CONSULTANTS LIMITED & ANOR HC AK CIV 2008-404-005341

An appearance under protest is not a proper mechanism to raise a Limitation Act time bar; the plaintiff was entitled to costs for the steps taken to have the inappropriate appearance set aside, awarded under item 4.12 of Schedule 3 of the High Court Rules and assessed on a 2A basis.

Citation
openlaw-c3ba0ce6_33fd_4973_bdac_443903894a2b.pdf
Parties
Plaintiff: Kiwi Broilers 2003 Limited; First Defendant: Airey Consultants Limited; Second Defendant: Gordon Barrie Beeson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 June 2009
Procedural Posture
Civil (high Court) Costs Application / Costs Determination (application to Set Aside Appearance Under Protest)
Outcome
Second defendant ordered to pay costs to the plaintiff for steps to set aside the appearance under protest.
Legal Topics
Appearance Under Protest, Set Aside Appearance, Notice to Protest Jurisdiction, Limitation Defence, High Court Rules Schedule 3
Civil Procedure Costs Limitation Appearance Under Protest Set Aside Appearance Notice to Protest Jurisdiction Limitation Defence High Court Rules Schedule 3

Case Brief

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Parties

Kiwi Broilers 2003 Limited

Plaintiff

Airey Consultants Limited

First Defendant

Gordon Barrie Beeson

Second Defendant

Procedural Posture

Civil (high Court) Costs Application / Costs Determination (application to Set Aside Appearance Under Protest)

Legal Issues

  1. 1 Whether an appearance under protest can be used to raise a statute-barred/time limit defence
  2. 2 Whether the plaintiff is entitled to costs for steps taken to have the appearance under protest set aside
  3. 3 Appropriate basis and scale for awarding costs under the High Court Rules

Ratio Decidendi

An appearance under protest is not a proper mechanism to raise a Limitation Act time bar; the plaintiff was entitled to costs for the steps taken to have the inappropriate appearance set aside, awarded under item 4.12 of Schedule 3 of the High Court Rules and assessed on a 2A basis.

Court Disposition

Second defendant ordered to pay costs to the plaintiff for steps to set aside the appearance under protest.

Orders

  • Second defendant to pay plaintiff costs in respect of the document filed to set aside the inappropriate appearance under protest in accordance with item 4.12 of Schedule 3 of the High Court Rules assessed on a 2A basis.