CLEARWATER COVE APARTMENTS BODY CORPORATE NO 170989 V AUCKLAND COUNCIL HC AK CIV-2011-404-5751

CLEARWATER COVE APARTMENTS BODY CORPORATE NO 170989 V AUCKLAND COUNCIL HC AK CIV-2011-404-5751

Recall was not available because the sealed order could not be recalled under r 11.9 and the Court's inherent jurisdiction was not engaged where appellants had an avenue of appeal but failed to pursue it; moreover appellants failed to provide adequate evidence of any breach of natural justice and their repeated defaults weighed against exercise of discretion to recall.

Citation
openlaw-fcf20136_ac40_4824_a7a4_9b28f1b1e2bd.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
26 October 2012
Procedural Posture
Appeal From Weathertight Homes Tribunal Under the Weathertight Homes Resolution Services Act 2006 / Application for Recall of Judgment (interlocutory)
Outcome
Application for recall dismissed
Legal Topics
Security for Costs, Strike Out/dismissal of Appeal, Recall of Judgment, Natural Justice, Procedural Timetabling
Weathertight Homes Civil Procedure Appeals Costs Inherent Jurisdiction Security for Costs Strike Out/dismissal of Appeal Recall of Judgment +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 6 Party arguments 2 Amounts and remedies 6
Sign in to unlock

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 From Weathertight Homes Tribunal Under the Weathertight Homes Resolution Services Act 2006 / Application for Recall of Judgment (interlocutory)

Legal Issues

  1. 1 Whether the Court may recall a sealed order under High Court Rules r 11.9 or by inherent jurisdiction
  2. 2 Whether there was a breach of natural justice sufficient to justify recall
  3. 3 Whether failure to pay ordered security justified dismissal/strike out of the appeal under applicable rules

Ratio Decidendi

Recall was not available because the sealed order could not be recalled under r 11.9 and the Court's inherent jurisdiction was not engaged where appellants had an avenue of appeal but failed to pursue it; moreover appellants failed to provide adequate evidence of any breach of natural justice and their repeated defaults weighed against exercise of discretion to recall.

Court Disposition

Application for recall dismissed

Orders

  • Application for recall dismissed