CLEARWATER COVE APARTMENTS BODY CORPORATE NO 170989 V AUCKLAND COUNCIL HC AK CIV-2012-404-5640

CLEARWATER COVE APARTMENTS BODY CORPORATE NO 170989 V AUCKLAND COUNCIL HC AK CIV-2012-404-5640

In light of evidence indicating the Body Corporate's weak financial position, indications of bad faith and imprudent refusal of Calderbank offers, and projected appellant liability to each respondent of approximately $12,000–$14,000, the Court exercised its discretion to order increased security for costs ($10,000 per respondent) and to grant an interim stay of enforcement for 15 working days conditional on payment; failure to pay causes the stay to lapse and may lead to dismissal of the appeal or enforcement of the WHT costs determination.

Citation
openlaw-e61f7676_ba31_460b_8ae2_9870f16909ce.pdf
Parties
First Appellant: Clearwater Cove Apartments Body Corporate No 170989; Second Appellants: Nicholas Van Dijk and Norman Palmer as trustees of the Livitrust; First Respondent: Auckland Council; Second Respondent: The Fletcher Construction Company Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 October 2012
Procedural Posture
Appeal From Weathertight Homes Tribunal Costs Determination / Applications for Increased Security for Costs and Stay of Enforcement Pending Appeal
Outcome
Increased security ordered and interim stay granted: appellant ordered to pay $10,000 security to each respondent (total $20,000) within 15 working days; interim stay of enforcement of the WHT costs determination for 15 working days and continuing if security paid until further order; failure to pay causes stay to...
Legal Topics
Security for Costs, Stay of Execution, Indemnity Costs, Calderbank Offers, Weathertight Homes Resolution Services Act 2006 S91
Costs Civil Procedure Administrative Law Property Law Security for Costs Stay of Execution Indemnity Costs Calderbank Offers +1 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 Livitrust

Second Appellants

Auckland Council

First Respondent

The Fletcher Construction Company Limited

Second Respondent

Procedural Posture

Appeal From Weathertight Homes Tribunal Costs Determination / Applications for Increased Security for Costs and Stay of Enforcement Pending Appeal

Legal Issues

  1. 1 Whether increased security for costs should be ordered for the respondents on appeal
  2. 2 Whether enforcement of the Weathertight Homes Tribunal costs determination should be stayed pending appeal
  3. 3 Whether the appellants acted in bad faith and/or are impecunious so as to justify indemnity costs and security

Ratio Decidendi

In light of evidence indicating the Body Corporate's weak financial position, indications of bad faith and imprudent refusal of Calderbank offers, and projected appellant liability to each respondent of approximately $12,000–$14,000, the Court exercised its discretion to order increased security for costs ($10,000 per respondent) and to grant an interim stay of enforcement for 15 working days conditional on payment; failure to pay causes the stay to lapse and may lead to dismissal of the appeal or enforcement of the WHT costs determination.

Court Disposition

Increased security ordered and interim stay granted: appellant ordered to pay $10,000 security to each respondent (total $20,000) within 15 working days; interim stay of enforcement of the WHT costs determination for 15 working days and continuing if security paid until further order; failure to pay causes stay to...

Orders

  • Appellant to pay security for costs of $10,000 to each respondent (total $20,000) to the Registrar within 15 working days of judgment delivery.
  • Interim stay of enforcement of the Weathertight Homes Tribunal costs determination for 15 working days from judgment delivery.