Ruling requires appellant, which doubled down on its position, to pay costs
New Zealand’s Court of Appeal has refused to depart from the assumption that a party would need leave to appeal the denial of its application seeking an interim injunction, as supported by a “sheer number of cases.”
In Raine & Horne New Zealand Pty Limited v Normans Road Real Estate Limited, [2025] NZCA 204, the appellant applied for an interim injunction. After the High Court denied its application, the appellant wanted to challenge this decision.
Though the Court of Appeal’s registry informed the appellant about the need for leave, the appellant insisted that no such requirement existed.
In October 2024, upon a reference seeking direction, a single appeal court judge issued a minute order recognising the issue of whether the appellant needed leave to appeal under s. 56(3) of the Senior Courts Act, 2016, given the definition of interlocutory application in s. 4 of the statute.
However, the judge noted that multiple authorities have considered leave necessary for appeals from interim injunction decisions, even though the court has not substantively tackled the applicant’s points in this case. The judge acknowledged the exception for decisions on interlocutory applications that disposed of the matter and fell within s. 56(4).
The judge directed the appeal court to hear and determine, based on the written material, the issue of whether it had jurisdiction to deal with the proposed appeal without leave unless the appellant obtained leave.
When the appellant declined to seek leave from the High Court, the issue came before two appeal court judges, who would decide it based on the papers. The parties filed their submissions with the court.
Last March, the two judges struck out the proposed appeal for lack of jurisdiction. They ruled that the High Court’s decision was interlocutory and that the appellant needed to obtain leave of the High Court or the appeal court before challenging the interlocutory decision via an appeal.
The judges made the following findings:
The judges suggested costs should follow in the usual manner. However, they permitted the parties to file submissions to address costs. In their cost submissions, the appellant argued that costs should lie where they fell, while the respondents disagreed.
The Court of Appeal of New Zealand ordered the appellant to pay the respondents’ costs for a half-day standard appeal on a band A basis, as reasonably proposed by the respondents’ counsel.
The appeal court refused to go against the authorities’ orthodox position on this issue and saw no genuine absence of clarity in this case.
The appeal court found that the appellant decided to defend its stance that it did not need to seek leave to appeal despite the registry’s advice to the contrary, the clear statutory language, and the weight of the case authorities regarding this question.
The appeal court noted that the appellant could have applied for leave, as the single judge suggested in his minute order. The appeal court added that the appellant instead exposed the respondents to the expenses of filing submissions on this issue.
