LAWRENCE RIVERSIDE LIMITED V C P HOLDINGS LIMITED COA CA45/2011

LAWRENCE RIVERSIDE LIMITED V C P HOLDINGS LIMITED COA CA45/2011 3 November 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA45/2011[2011] NZCA 547BETWEEN LAWRENCE RIVERSIDE LIMITEDFirst AppellantAND B R LAWRENCE AND B H LAWRENCESecond AppellantsAND C P HOLDINGS LIMITEDFirst RespondentAND CAPITAL HOSPITALITY HOLDINGSLIMITEDSecond RespondentHearing: 21 September 2011Court: Wild, Miller and Simon France JJCounsel: G A Keene for AppellantsR O Parmenter for RespondentsJudgment: 3 November 2011 at 3:00 PMReasons: 3 November 2011JUDGMENT OF THE COURTA The appeal is dismissed for lack of jurisdiction.B The respondents are entitled to costs as for a standard appeal on a band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] On 21 September 2011 this Court heard an appeal from a decision of Associate Judge Doogue declining the appellants leave to amend their pleadings.1The applications in issue were made long after the setting down date of the proceedings.[2] Subsequent to the hearing it belatedly occurred to the panel that there was no jurisdiction to hear the appeal. A Minute was issued seeking submissions. Because the trial is imminent, and because one member of the panel was not then available to sign off on specific reasons, a results judgment was issued confirming that the appeal was brought without jurisdiction.2 These are the brief reasons.[3] The applications before Associate Judge Doogue were for leave to amend the statement of defence by adding further pleaded defences. It was made pursuant to r 7.77, and was subject to r 7.18 which deals with steps taken after the setting down date. Leave was, therefore, required. r 7.52, which deals with repetitive interlocutory applications, and which again imposes a leave requirement, also applied.[4] The application was determined by Associate Judge Doogue. His Honour was plainly hearing the matter in chambers, pursuant to s 26J of the Judicature Act 1908, and r 2.1. Section 26P(1) and r 2.3 provide that challenge to such decisions is by way of review in the High Court.3[5] Mr Keene submitted he was assisted by Association of Dispensing Opticians of NZ Inc v Opticians Board.4 That case involved an appeal from a decision of the High Court declining leave to cross examine deponents in a judicial review proceeding. The issue was whether there was a right to appeal under s 66 of the Judicature Act 1908. The case does not assist for two reasons. First, the appeal and review routes for decisions of an Associate Judge are found in s 26P of the Act. Second, contrary to Mr Keene's submission, the present case does not affect the applicant's substantive rights. Whether a case would be stronger if leave to amendwere given is not the issue. The proceeding may go to trial on the present pleadings.1 Lawrence Riverside Ltd & Anor v CP Holdings Ltd & Ors HC Auckland CIV 2006-404-4739, 13 December 2010, Doogue AJ.2 Lawrence Riverside Limited v C P Holdings Limited [2011] NZCA 515.3 Nottingham v Registered Securities Ltd (in liq) (1998) 12 PRNZ 625 (CA).4 Association of Dispensing Opticians of NZ Inc v Opticians Board (1999) 13 PRNZ 593.[6] For these reasons there is no jurisdiction to hear the appeal. The two High Court Judges sitting on the panel offered the parties judgment by way of review but this was declined.[7] As ordered in the results judgment, the respondent is entitled to costs for a standard appeal on a band A basis, with usual disbursements.Solicitors:Simpson Dowsett Mackie, Auckland for AppellantsGrahame Fong, Auckland for Respondents