CLEARWATER COVE APARTMENTS and ORS v AUCKLAND COUNCIL and ANOR HC AK CIV-2011-404-5751

CLEARWATER COVE APARTMENTS and ORS v AUCKLAND COUNCIL and ANOR HC AK CIV-2011-404-5751

Given deliberate steps to avoid s 55, non-disclosure of the joint venture to the WHT, provisional findings in related proceedings suggesting WHHL's insolvency, and the merits of the appeal, the court exercised its discretion under r 20.13 to order additional security but declined the full sum sought; further security of $5,000 was ordered and failure to pay will stay the appeal.

Citation
openlaw-41f0e3a8_7509_4018_9f57_aadcc1ad901d.pdf
Parties
First Appellant: Clearwater Cove Apartments Body Corporate No. 170989; Second Appellants: Nicholas Van Dijk and Norman Palmer as trustees of The Livi Trust; First Respondent: Auckland Council; Second Respondent: The Fletcher Construction Company Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 July 2012
Procedural Posture
Appeal / Interlocutory Security for Costs Application on Appeal
Outcome
Application for increased security granted in part; further security ordered of $5,000 and appeal to be stayed if not paid by deadline
Legal Topics
Security for Costs, Indemnity Costs, Limitations, Disclosure Obligations, S 55 Weathertight Homes Resolution Service Act 2008, Appeal Case Management
Civil Procedure Costs Property Law Weathertight Homes Litigation Insolvency Security for Costs Indemnity Costs Limitations +3 more

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Parties

Clearwater Cove Apartments Body Corporate No. 170989

First Appellant

Nicholas Van Dijk and Norman Palmer as trustees of The Livi Trust

Second Appellants

Auckland Council

First Respondent

The Fletcher Construction Company Limited

Second Respondent

Procedural Posture

Appeal / Interlocutory Security for Costs Application on Appeal

Legal Issues

  1. 1 Whether increased security for costs should be ordered under r 20.13
  2. 2 Whether s 55 of the Weathertight Homes Resolution Service Act 2008 terminates WHHL's claim
  3. 3 Whether appellants are able to meet any costs award

Ratio Decidendi

Given deliberate steps to avoid s 55, non-disclosure of the joint venture to the WHT, provisional findings in related proceedings suggesting WHHL's insolvency, and the merits of the appeal, the court exercised its discretion under r 20.13 to order additional security but declined the full sum sought; further security of $5,000 was ordered and failure to pay will stay the appeal.

Court Disposition

Application for increased security granted in part; further security ordered of $5,000 and appeal to be stayed if not paid by deadline

Orders

  • Appellants to pay further security of $5,000 to the Registrar by 5.00 pm on Thursday 9 August
  • If appellants fail to pay the further security by that time the appeal will be stayed without further call