LEVIN AND JORDAN V ROBERTSON HC AK CIV 2006-404-6618

LEVIN AND JORDAN V ROBERTSON HC AK CIV 2006-404-6618

The conditional adjournment requiring CMNL to pay $30,000 into Court was lawful and proportionate; CMNL was given an adequate opportunity to be heard and elected not to be further represented, then failed to comply with the strict payment condition and is therefore debarred from defending the third party claim. There is no jurisdictional basis under rr 259, 469 or r542(3) to recall the order on the facts and, even if jurisdiction existed, discretionary relief would be refused given CMNL's conduct and the risk of uncommercial proceedings.

Citation
openlaw-69a7a93b_3519_4157_8228_7eb9a2a79199.pdf
Parties
Plaintiff (liquidator): Henry David Levin; Plaintiff (liquidator): Barry Phillip Jordan; Defendant: Stuart Douglas Robertson; Third Party (appointor): Contributory Mortgage Nominees Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 December 2007
Procedural Posture
Civil — Receivership and Liquidation; Third‑party Indemnity Claim / Post‑judgment Application to Recall/rescind Interlocutory Order; Preparing for Formal Proof
Outcome
Application dismissed; third party (CMNL) debarred from defending the third party claim; defendant (Robertson) permitted to proceed to formal proof; costs awarded to Robertson on a 2B basis with reasonable disbursements to be fixed by the Registrar.
Legal Topics
Third Party Proceedings, Indemnity, Conditional Adjournment, Recall of Judgment, Natural Justice, Costs
Civil Procedure Receivership and Liquidation Contract (indemnity) Third Party Proceedings Indemnity Conditional Adjournment Recall of Judgment Natural Justice +1 more

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Parties

Henry David Levin

Plaintiff (liquidator)

Barry Phillip Jordan

Plaintiff (liquidator)

Stuart Douglas Robertson

Defendant

Contributory Mortgage Nominees Limited

Third Party (appointor)

Procedural Posture

Civil — Receivership and Liquidation; Third‑party Indemnity Claim / Post‑judgment Application to Recall/rescind Interlocutory Order; Preparing for Formal Proof

Legal Issues

  1. 1 Whether the Judge had jurisdiction to recall or set aside the interlocutory adjournment order
  2. 2 Whether principles of natural justice were breached by inadequate opportunity to be heard
  3. 3 Application of High Court Rules rr 259, 469 and 542(3) to recall/rescission requests

Ratio Decidendi

The conditional adjournment requiring CMNL to pay $30,000 into Court was lawful and proportionate; CMNL was given an adequate opportunity to be heard and elected not to be further represented, then failed to comply with the strict payment condition and is therefore debarred from defending the third party claim. There is no jurisdictional basis under rr 259, 469 or r542(3) to recall the order on the facts and, even if jurisdiction existed, discretionary relief would be refused given CMNL's conduct and the risk of uncommercial proceedings.

Court Disposition

Application dismissed; third party (CMNL) debarred from defending the third party claim; defendant (Robertson) permitted to proceed to formal proof; costs awarded to Robertson on a 2B basis with reasonable disbursements to be fixed by the Registrar.

Orders

  • Application under rr 259, 469 and 542(3) dismissed
  • Contributory Mortgage Nominees Ltd is debarred from defending the third party proceeding