DUFFY AND SPEARS V VERVOORT CA243/2013 [2013] NZCA 522

DUFFY AND SPEARS V VERVOORT CA243/2013 [2013] NZCA 522 [25 October 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA243/2013[2013] NZCA 522BETWEEN WILLIAM DUFFY AND RAYMONDDENNIS SPEARSAppellantAND EMILIE PETRONELLA CORADINAVERVOORTRespondentCourt: O'Regan P, Ellen France and Stevens JJCounsel: A J Sherlock for AppellantP T Finnigan for RespondentJudgment:(On the papers)25 October 2013 at 4.30 pmJUDGMENT OF THE COURTA The appeal is dismissed for want of jurisdiction.B The appellants are to pay the respondent's costs in the sum of $2,000 plus usualdisbursements in the sum of $166.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)[1] The respondent, Ms Vervoort, filed a proceeding in the High Court against the trustees of the William Duffy Family Trust (the Trust) including Messrs Duffy and Spears, the appellants, seeking declarations in respect of the Trust, equitable damages, interest and costs. The appellants, who reside in Fiji, filed an appearanceunder protest and objection to the jurisdiction of the High Court under r 5.49 of the High Court Rules (the Rules).[2] The appellants then filed an application in the High Court to dismiss Ms Vervoort's proceeding in reliance on rr 5.49, 6.28 and 6.29 of the Rules. Theapplication was heard by Associate Judge Sargisson by way of interlocutory application in Chambers. The Associate Judge, in a reserved judgment, held that the Court had jurisdiction to determine the proceeding and dismissed the application tohave the proceedings dismissed. The appellants' appearance under protest was setaside.1[3] The appellants filed an appeal in this Court against the judgment of Associate Judge Sargisson. The appeal was due to be heard in this Court on 12 November 2013.[4] The file was this week referred to me on a matter of representation. This necessitated a telephone conference during which the jurisdiction of this Court to deal with the appeal was raised.[5] Counsel have helpfully filed a joint memorandum accepting that this Court does not have jurisdiction to deal with the matter. As the matter involved the hearing of an interlocutory application by an Associate Judge in Chambers, any challenge to the judgment must be by way of review to a Judge of the High Court.2 By virtue of s 26(2) of the Judicature Act 1908 this Court may only hear appeals from decisionsof an Associate Judge if the decision is one made "in Court" rather than "in Chambers". The "in Court" jurisdiction of an Associate Judge is clearly set out in s 26(I) of the Judicature Act. The appellants' interlocutory application is not referredto in that section.[6] It follows that the appeal must be dismissed for want of jurisdiction.1 Vervoort v Forrest & Ors (HC) Ak CIV-2011-404-6668, 26 March 2013.2 That an application for review to the High Court is the appropriate procedure as confirmed by this Court in Ludgater v Gerling [2010] 2 NZLR 145 at [14]–[16].[7] An order for costs is appropriate. There will be an order for costs pursuant to r 53 of the Court of Appeal (Civil) Rules 2005 in the sum of $2,000 plus disbursements in the sum of $166.00.Solicitors:Hesketh Henry, Auckland for AppellantsAndrew Owen Thomas of East Auckland Law, Auckland for Appellant