Birkenfeld v Kendall and another [2009] NZCA 619 (22 December 2009)

Court of Appeal of New Zealand

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Birkenfeld v Kendall and another [2009] NZCA 619 (22 December 2009)

Last Updated: 18 January 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA793/2009 [2009] NZCA 619

BETWEEN KIMBERLEY BIRKENFELD
Appellant

AND ANTHONY BRUCE KENDALL
First Respondent

AND YACHTING NEW ZEALAND INCORPORATED
Second Respondent

Court: O'Regan, Arnold and Ellen France JJ

Counsel: Appellant in person
N Beadle for Second Respondent

Judgment: 22 December 2009 at 10.30 am

(on the papers)

JUDGMENT OF COURT

The application for a stay pending disposition of the appeal is dismissed.

REASONS OF THE COURT
(Given by Arnold J)

[1] In this appeal the appellant seeks to challenge three decisions made by Randerson J. They are:

(a) A ruling dated 3 December 2009 that he was not disqualified from dealing with issues outstanding from his earlier decision dated 27 September 2007. In the latter decision Randerson J held that the appellant’s proceedings against the first and second respondents should be stayed permanently, on the ground that the limitation fund, which the respondents were prepared to pay, set the maximum amount for which they could be liable to her, as determined by this Court in a judgment reported at [2007] 1 NZLR 596. The appellant had unsuccessfully appealed against the 27 September 2007 decision: see [2008] NZCA 531 and [2009] NZSC 68.

(b) A judgment dated 7 December 2009 in which he dealt with the outstanding issues. He entered a permanent stay in respect of the appellant’s proceedings against the respondents, subject to the respondents paying the limitation fund and accrued interest to the Public Trustee, to be held on trust for the appellant.

(c) A minute dated 10 December 2009 in which he rejected the appellant’s application to recall his judgment of 7 December 2009.

[2] In conjunction with her appeal, the appellant seeks a stay in respect of the orders made by Randerson J in his judgment of 7 December 2009 until the appeal is determined. A particular concern that she has raised in her application is that if the fund is held by the Public Trustee to her direction, she will not be granted waivers in respect of court fees as has occurred in the past, but will be forced to utilise the funds, to her prejudice. Mr Beadle for the second respondent opposes the application.
[3] The appellant faces two difficulties. First, she has exhausted her appeal rights against Randerson J’s 27 September 2007 decision that, as the limitation fund which the respondents have tendered represented their maximum liability to her, her proceedings against them should be permanently stayed. His judgment of 7 December 2009 is simply consequential on that earlier, now unchallengeable, decision. As the appellant has no further right of appeal against the 27 September 2007 decision, the only point which she can now appeal arising out of the 7 December 2009 decision concerns the terms on which the Public Trustee holds the fund. Accordingly, if granted, the interim stay would give her more than she could obtain if her appeal were to succeed.
[4] Second, apart from that, she has not established that the interim order is needed to preserve her position prior to the appeal. Her concern is that it may affect her ability to obtain a waiver of court fees. But that may or may not prove to be so. And if her appeal were to succeed, there is no reason that Randerson J’s orders could not be vacated.
[5] Accordingly, we decline the application for a stay pending disposition of the appeal.

Solicitors:
DLA Phillips Fox, Auckland for Second Respondent