SOS INVESTMENTS LIMITED v FM CUSTODIANS LIMITED CA243/2014 [2015] NZCA 296
The Court granted a conditional adjournment subject to an unless order: New Zealand solicitors must confirm by the deadline that they will become solicitors on the record, will instruct Mr Katz and will protect his fee, and $1500 must be paid for the day's adjournment by 5 pm on the specified Friday; failure to...
Source-derived case information.
- Citation
- [2015] NZCA 296
- Parties
- Appellant: SOS Investments Limited; Respondent: FM Custodians Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 8 July 2015
- Procedural Posture
- Civil Appeal / Oral Hearing Interlocutory (adjournment/unless Order)
- Outcome
- Adjournment granted on condition; unless order made requiring solicitor confirmation and payment of costs; appeal to be dismissed if conditions not met.
- Legal Topics
- Summary Judgment, Adjournment, Unless Order, Costs, Court Rules
Source-derived case record
Summary, issues, holding and outcome
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Parties
SOS Investments Limited
Appellant
FM Custodians Limited
Respondent
Procedural Posture
Civil Appeal / Oral Hearing Interlocutory (adjournment/unless Order)
Legal Issues
- 1 Whether to grant an adjournment
- 2 Whether to make an unless order as condition of adjournment
- 3 Whether the appeal should be dismissed for non-compliance with an unless order
Ratio Decidendi
The Court granted a conditional adjournment subject to an unless order: New Zealand solicitors must confirm by the deadline that they will become solicitors on the record, will instruct Mr Katz and will protect his fee, and $1500 must be paid for the day's adjournment by 5 pm on the specified Friday; failure to comply will result in dismissal of the appeal without further hearing; if complied with, specified timetable directions and hearing date apply.
Court Disposition
Adjournment granted on condition; unless order made requiring solicitor confirmation and payment of costs; appeal to be dismissed if conditions not met.
Orders
- Unless by 5 pm on Friday New Zealand solicitors confirm to the Registrar that they will become solicitors on the record, will instruct Mr Katz and will protect him for his fee, and costs of $1500 are paid for today's adjournment, the appeal will be dismissed without further hearing.
- If the unless order is complied with, Mr Katz must file his submissions by 17 July and Mr Stewart must file submissions in response by 24 July; the hearing will be held on 29 July in Wellington at a time to be fixed by the Registrar; counsel may appear by video.
Full Case Text
Judgment text and source record
1 paragraphs
SOS INVESTMENTS LIMITED v FM CUSTODIANS LIMITED CA243/2014 [2015] NZCA 296 [8 July 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA243/2014[2015] NZCA 296BETWEEN SOS INVESTMENTS LIMITEDAppellantAND FM CUSTODIANS LIMITEDRespondentHearing: 8 July 2015Court: Miller, Lang and Wylie JJCounsel: R J Katz QC for AppellantR B Stewart QC and N L Penman-Chambers for RespondentJudgment: 8 July 2015 at 11.11 amORAL JUDGMENT OF THE COURTThe Court makes the unless order referred to in paragraph [5]. If it is not complied with, the appeal will be dismissed without further hearing. If it is complied with, the timetable directions in paragraph [6] apply.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] This is an appeal against refusal of summary judgment. It was made clear before the hearing that the appellant company, which had filed its own submissions and whose solicitor was given leave to withdraw, must appear by counsel at the hearing.[2] At the hearing today Mr Katz QC appeared to seek an adjournment. He has only just been instructed and is in no position to argue the appeal on its merits. Heanticipates that he will be briefed for the appeal by an instructing solicitor, but he does not presently have one.[3] The attitude of the respondent is that it wishes to proceed but would prefer a short adjournment to the alternative, which is likely to involve further procedural difficulties. A fixture is available on 29 July in Wellington.[4] It must be said that this situation is profoundly unsatisfactory and to grant an adjournment is to extend a considerable indulgence to the appellant, which has failed to explain at all its default in briefing counsel.[5] Under r 48 of the Court of Appeal rules this Court on the hearing of an appeal has all the powers and duties of the High Court concerning procedure. That includesthe making of unless orders. Having regard to the appellant's conduct, we think it isappropriate to make such an order as a condition of an adjournment. We require thatNew Zealand solicitors confirm to the Registrar that they will become solicitors onthe record and will instruct Mr Katz and will protect him for his fee on the hearing ofthe appeal. We require also that costs of $1500 be paid for today's adjournment.Unless both of those steps are undertaken by 5 pm on Friday the appeal will bedismissed without further hearing.[6] Assuming the unless order is complied with, Mr Katz must file his submissions by 17 July. Mr Stewart must file his submissions in response by 24 July. The hearing will be held on 29 July at Wellington at a time to be fixed by the Registrar. Counsel may appear by video if it is not convenient to appear in Wellington.