Addleman v Lambie Trustee Limited

[2019] NZCA 609

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA545/2017
 [2019] NZCA 609

BETWEEN	PRUDENCE ANNE ADDLEMAN Appellant
AND	LAMBIE TRUSTEE LIMITED Respondent

Counsel:	A S Ross QC and R A Rose for Appellant D A T Chambers QC for Respondent
Judgment: (On the papers)	3 December 2019 at 1 pm

JUDGMENT OF COOPER J ON APPLICATION FOR STAY

AThe stay of execution sought by the respondent in its application dated 18 November 2019 is granted.  The stay is to apply until either the Supreme Court refuses leave to appeal, or determines the appeal.

BThe stay is granted subject to the conditions that:

(a)     This Court’s judgment must be sealed by the respondent on or before Thursday 12 December 2019.

(b)     The respondent must refund to Mrs Addleman the sum of $47,238.68 that she paid following the High Court’s judgment, on or before Thursday 12 December 2019.

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REASONS

1. The respondent, Lambie Trustee Ltd, seeks a stay of execution of this Court’s judgment delivered on 4 October 2019.[1]  The application is opposed by the appellant, Prudence Addleman, who was successful in this Court, securing orders requiring the respondent to provide documents in its possession or power relating to the Lambie Trust which was the subject of the litigation, and also requiring provision of an affidavit explaining what had become of any documents in the categories of those required to be provided but which could not be located.  This Court also ordered that Mrs Addleman’s costs in this Court be paid.

   [1]Addleman v Lambie Trustee Ltd [2019] NZCA 480.

2. Although the appellant by memorandum dated 25 November 2019 opposes the stay, she offers a conditional consent.  The conditions are that within two working days of the grant of the stay, the respondent:

   (a)seals this Court’s judgment of 4 October 2019;

   (b)pays Mrs Addleman’s costs and disbursements in this Court and refunds costs she paid in accordance with the High Court’s decision on costs; and

   (c)supplies Mrs Addleman and/or this Court with the affidavit required by the Court’s order with reference to documents unable to be found.

3. Leaving questions of costs on one side, there is no doubt that unless the stay is granted the appeal might be rendered nugatory, particularly insofar as the order made by this Court requiring provision of documents is concerned.  The order requiring provision of an affidavit explaining what has become of any documents which might be missing was ancillary to that principal order.  There is no credible suggestion that the application for leave to appeal to the Supreme Court has not been advanced on a bona fides basis nor is there any relevant effect on third parties to consider.  In terms of injurious effect on Mrs Addleman, counsel complain of further delays against the background of what they describe as a general strategy of delay, and note that she has waited nearly 30 years for information relating to the Trust.  This Court’s judgment set out a history of requests for information going back to March 2003. 

4. In addition, the respondent successfully opposed Mrs Addleman’s requests in the High Court.[2]  In part that stance was justified on the basis that, as was conceded by counsel in this Court, the request for information was overly broad.[3]  Consequently, although there is a legitimate concern about delay consequent upon the grant of a stay, I do not consider that concern sufficient to decline a stay pending the Supreme Court’s decision on the application for leave to appeal and, if such leave is granted, until the judgment is delivered.

   [2]Addleman v Lambie Trustee Ltd [2017] NZHC 2054.

   [3]Addleman v Lambie Trustee Ltd, above n 1, at [26].

5. I am satisfied the overall balance of convenience favours the grant of the stay sought.[4]

   [4]Keung v GBR Investment Ltd [2010] NZCA 396 at [11].

6. Counsel for Mrs Addleman note that this Court’s judgment has not been sealed.  Rule 52(3) of the Court of Appeal (Civil) Rules 2005 provides that a party may apply for leave to appeal to the Supreme Court even though the judgment sought to be appealed against has not been sealed.  But it also requires that the party takes steps to ensure that the judgment is sealed promptly after the application for leave is filed.  Here, the application for leave was filed on 4 November, but the judgment has not yet been sealed.  This is hardly “prompt”.  The judgment should be sealed forthwith.

7. On the question of costs, requiring the respondent to pay the costs ordered by this Court would at least indirectly affect the right of appeal, but making no order in relation to costs would leave Mrs Addleman, who paid the costs ordered by the High Court, as the only party who had complied with the costs order of a lower court.  I consider it appropriate, as a condition of the stay, to order that the costs that she paid in the High Court be refunded.

8. I grant the stay of execution sought by the respondent in its application dated 18 November 2019.  The stay is to apply until either the Supreme Court refuses leave to appeal, or determines the appeal.

9. The stay is granted subject to the conditions that:

   (a)This Court’s judgment must be sealed by the respondent on or before Thursday 12 December 2019.

   (b)The respondent must refund to Mrs Addleman the sum of $47,238.68 that she paid following the High Court’s judgment, on or before Thursday 12 December 2019.

Solicitors:
Bell Gully, Auckland for Appellant
Kemps Weir Lawyers, Auckland for Respondent