Alderton v Sixty-Six Auckland Limited

[2024] NZHC 3290

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-137 [2024] NZHC 3290

IN THE MATTER

of 199-201 Anzac Valley Road, Waitakere, Auckland

BETWEEN

PETER and LINDA ALDERTON as trustees of the PETER ALDERTON FAMILY TRUST

Applicants

AND

SIXTY-SIX AUCKLAND LIMITED

First Respondent

DOKAD TRUSTEES LIMITED and PETER WILLIAM MAQHINNEY

Second Respondents

Hearing:

On the papers

Counsel:

A Low for the Applicants

No appearance for the First Respondent or first-named Second Respondent

P W Mawhinney, the second-named Second Respondent, in person

Judgment:

7 November 2024

JUDGMENT OF GAULT J

This judgment was delivered by me on 7 November 2024 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors / Counsel:

Ms A Low, Barrister, Auckland

Mr K Mackie (applicants’ instructing solicitor), Mackie and Co., Auckland The Respondents

ALDERTON v SIXTY-SIX AUCKLAND LTD [2024] NZHC 3290 [7 November 2024]

[1]       Following my judgment of 13 August 2024 requiring the Aldertons to purchase, and the second respondents to sell, the second respondents’ 1/10 share in a property for $10,000 (the substantive judgment),1 Mr Mawhinney has applied for a stay of the judgment pending appeal to the Court of Appeal, together with a stay of any costs award.2

[2]The Aldertons oppose a stay.

[3]On 19 September 2024, I issued a minute directing the filing of submissions.3

[4]       On 4 October 2024, I issued a further minute following receipt of submissions and the Court of Appeal’s minute of Goddard J dated 19 September 2024.4 This minute of Goddard J identified difficulties with the proposed appeal and concluded that no further steps may be taken in relation to the appeal unless and until an application for an extension of time to appeal is filed.5  My minute indicated that I would determine the stay application on the papers, and that unless Mr Mawhinney filed and served such an application for an extension of time to appeal and provided a copy to this Court by 11 October 2024, I would proceed to determine the stay application on the basis that no further steps may be taken in relation to the appeal.

[5]       On 8 October 2024, Mr Mawhinney provided this Court with a copy of his application for an extension of time to appeal (dated 9 October 2024).

[6]       I am unaware of any further developments in relation to Mr Mawhinney’s application for an extension of time in the Court of Appeal. It is appropriate that I determine the stay application on the basis that the application is pursued.

1       Alderton v Sixty-Six Auckland Ltd [2024] NZHC 2263. The property comprises lot 309, deposited plan 210991, and a 1/8 share in each of lot 200, deposited plan 210991, and lot 9, deposited plan 166619 (Identifier 645960).

2       The application was dated 8 September 2024 but only filed on 11 September 2024. There is a dispute as to when it was served.

3       Alderton v Sixty-Six Auckland Ltd HC Auckland CIV-2023-404-000137, 19 September 2024 (Minute) at [3]. I also timetabled any costs memorandum by Mr Mawhinney in response to the Aldertons’ costs memorandum already filed. I will determine costs on the papers separately.

4       Alderton v Sixty-Six Auckland Ltd HC Auckland CIV-2023-404-000137, 4 October 2024 (Minute).

5       Mawhinney v Alderton CA590/2024, 19 September 2024 (Minute).

Factual background

[7]       The factual background is set out in my earlier judgment. For present purposes, it suffices to repeat that the Aldertons sought orders under s 339 of the Property Law Act 2007 (PLA) in relation to purchase of the 1/10 share in the property that Mr Mawhinney or his interests had retained (essentially since 1997) pending access arrangements for his proposed development of two other neighbouring lots. By 2017, Mr Mawhinney’s interests no longer owned any neighbouring land, but Mr Mawhinney maintained that access to other land remains a live issue given the Mawhinney interests’ other subdivision consents and property rights.

[8]       Considering the statutory factors in s 342 of the PLA, including hardship to each co-owner, the substantive judgment concluded that it was appropriate to make an order requiring the Aldertons to purchase, and the second respondents to sell, the second respondents’ 1/10 share in the property at a fair and reasonable price, determined to be $10,000.

Stay – applicable principles

[9]       An appeal does not operate as a stay of execution of this Court’s decision.6 Nor indeed does an application for extension of time to appeal. However, the Court may order a stay of execution (rather than stay of the judgment) pending determination of an appeal or application for leave to appeal.7 As the Court of Appeal has said:8

The Rules do not set out any criteria for the granting of a stay, but the approach is well-established. As a starting point, a successful party is entitled to the fruits of its judgment. An appellant who seeks to stop this must make an application and show why the usual consequences of a judgment should not follow. The court will need to balance the competing rights of the party who has obtained judgment against the need to preserve the appellant’s position in the event of the appeal succeeding.⁹ The factors to be taken into account in the balancing exercise when a stay is sought were settled in the decisions of Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd ¹⁰ and Keung v GBR Investment Ltd.¹¹ These include whether the appeal may be rendered nugatory by the lack of a stay, the apparent strength of the appeal,

6       Court of Appeal (Civil) Rules 2005, r 12(1) and (2).

7       Rule 12(3)(a).

8       Greymouth Petroleum Holdings Ltd v Empresa Nacional Del Petróleo [2017] NZCA 397 at [10].

9       Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87.

10     Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9]; aff’d (1999) 13 PRNZ 48 (CA).

11     Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].

whether the successful party will be injuriously affected by the stay, and the overall balance of convenience.

Discussion

[10]     Mr Mawhinney acknowledges this Court’s decision involved the exercise of discretion, but he submits that all four grounds for overturning such a decision set out in May v May apply.12 He does not address other factors relevant to a stay.

[11]     Ms Low, for the Aldertons, submits that no appeal has been properly brought (referring to the Court of Appeal minute of Goddard J), that the appeal is without merit and an abuse of process, that the appeal grounds are difficult to comprehend and include irrelevant matters, that Mr Mawhinney is seeking to reopen the proceeding to make further alternate proposals, and that he should be required to pay costs. Ms Low submits the fact that an appeal may be rendered nugatory without a stay is not determinative,13 but she acknowledges Goddard J’s observation that a stay of the order for purchase of the interest in the property may be appropriate pending appeal.14 The Aldertons accept that, if a stay is not granted, the respondents’ interest in the property will be transferred to them, but say that none of the relief sought by the respondents on appeal results in an outcome where such transfer does not occur.15

[12]     There appears to be force in the Aldertons’ submissions that the appeal lacks merit. Indeed, the Court of Appeal is to decide whether the appeal can proceed at all. However, I acknowledge that if the transfer occurs now, the application for an extension of time to appeal would be rendered nugatory. The relief sought in the notice of appeal includes that the judgment be set aside.16 I consider the interests of justice are best served by granting a limited stay of execution pending determination of the application for an extension of time to appeal, conditional on appropriate undertakings not to transfer the respondents’ interest in the property without the leave of the Court, to enable the respondents to apply to the Court of Appeal for any further stay. Such a limited stay is appropriate since I consider that further conditions concerning the

12     May v May (1982) 1 NZFLR 165 (CA) at 169-170.

13     Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [20].

14     Mawhinney v Alderton CA590/2024, 19 September 2024 (Minute) at [7].

15     Citing Notice of Appeal, dated 6 September 2024, at [164](b)-(d).

16     At [164](a).

conduct of the appeal (such as security for costs and strict timetabling) would be appropriate and best imposed by the Court of Appeal if the appeal is to proceed.

[13]     Before the limited stay takes effect, Mr Mawhinney and Dokad Trustees Ltd are both to file and serve a signed undertaking not to transfer their interest in the property comprising lot 309, deposited plan 210991, and a 1/8 share in each of lot 200, deposited plan 210991, and lot 9, deposited plan 166619 (Identifier 645960), without the leave of the Court.

[14]     I do not consider it would be appropriate to stay the payment of any costs award pending appeal given the issues in relation to Mr Mawhinney’s status as a trustee identified in the Court of Appeal minute of Goddard J. As indicated, I will determine costs on the papers separately.

Result

[15]     I grant a limited stay of execution of this Court’s order dated 13 August 2024 pending determination of the application for an extension of time to appeal, conditional on Mr Mawhinney and Dokad Trustees Ltd both filing in this Court and serving a signed undertaking not to transfer their interest in the property comprising lot 309, deposited plan 210991, and a 1/8 share in each of lot 200, deposited plan 210991, and lot 9, deposited plan 166619 (Identifier 645960), without the leave of the Court.

Gault J