Body Corporate 188529 v North Shore City Council [2007] NZCA 255 (22 June 2007)

Last Updated: 16 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

CA250/07 [2007] NZCA 255

BETWEEN BODY CORPORATE 188529

First Appellant

AND KATRINA MARGARET SANGHA, DAVINDER SINGH, DEVLIN PROPERTIES LIMITED, MICHELLE JANETTE TURNER, LISA ADELLE TURNER, CLIFFORD SCOTT PARKINSON, JUDITH ROSEMARY PARKINSON, DAVID PAUL HALFORD AND BLUE SKY HOLDINGS LIMITED Second Appellants

AND NORTH SHORE CITY COUNCIL First Respondent

AND ROBERT HENRY GRAHAM BARTON AND KAY BARTON

Second Respondents

AND R F COUGHLAN AND ASSOCIATES Third Respondent

Hearing: 13 June 2007

Court: Ellen France, Ronald Young and Keane JJ Counsel: T Rainey and H K Harkess for Appellants

D J Heaney and G Grant for First Respondent

G Bogiatto for Second Respondent

A Maclean for Third Respondent

Judgment: 22 June 2007

Reasons: 22 June 2007

_{JUDGMENT OF THE COURT}

_{The appeal is granted.}

BODY CORPORATE 188529 AND ANOR V NORTH SHORE CITY COUNCIL AND ORS CA CA250/07 22

June 2007

REASONS OF THE COURT

(Given by Ellen France J)

[1] We have before us an appeal against an order of Harrison J declining to adjourn a trial in these “leaky home” proceedings which is due to commence in the High Court at Auckland at 10 am on 16 July 2007: HC AK CIV-2004-404-3230

29 May 2007.

[2] This panel has been convened to deal with the matter because, since the appeal was filed on 1 June 2007, the respondents have advised that they will consent to the appeal being granted.

[3] The circumstances leading to the appeal are set out in Harrison J’s minute of

29 May 2007 and we do not repeat them.

[4] We heard counsel and granted the appeal by consent. We said we would give short reasons and this we now do.

[5] We commence, however, by reiterating the comment we made to counsel that we share the reservations expressed by this Court in Doone v Fairfax New Zealand Limited CA 64/05 26 April 2005 as to whether this Court has jurisdiction in relation to this appeal. As this Court said in that case at [5]:

The law relating to appeals under s 66 of the Judicature Act 1908 was reviewed by this Court in The Association of Dispensing Opticians of New Zealand Inc v The Opticians Board [2000] 1 NZLR 158. The Court there noted that rulings made in the course of the hearing (such as an application for an adjournment) will not ordinarily be subject to an interlocutory appeal (at 166). There must be a sound substantive concern for this Court to have jurisdiction.

[6] In the present case, all parties have agreed that the appeal should be granted. We also understand from counsel that it has been possible for the registry at the High Court in Auckland to accommodate the fixture at a later date. In these circumstances, we saw it as appropriate to grant the appeal.

[7] No question of costs arises.

Solicitors:

Grimshaw & Co, Auckland for Appellants

Heaney & Co, Auckland for First Respondent

Kidd Tattersfield McClean, Auckland for Third Respondent