Almond v Read - [2016] NZHC 2137

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1278 [2016] NZHC 2137

BETWEEN
JANFERIE MAEVE ALMOND

Applicant

AND

BRUCE JAMES READ First Respondent

GLADYS READ Second Respondent

CHRISTOPHER JOHN READ Third Respondent

Hearing: 8 September 2016

Counsel:

S I Perese for Applicant/Defendant
J M Airey for First Respondent/First Plaintiff
N W Woods for Second and Third Respondents/Second and

Third Plaintiffs

Judgment:

8 September 2016

JUDGMENT OF BREWER J

Solicitors: Law & Associates (Auckland) for Applicant
Inder Lynch (Auckland) for First Respondent
Rice Craig (Auckland) for Second and Third Respondents

ALMOND v READ & ORS [2016] NZHC 2137 [8 September 2016]

Introduction

[1] On 11 November 2015, Thomas J gave judgment in this case in favour of the plaintiffs.1 The essence of the dispute concerned the nature and extent of interests of the parties in a piece of land. The judgment of Thomas J effectively awarded by way of constructive trust an interest totalling, in percentage terms, just over 75 per cent to the plaintiffs, with the remainder being the interest of the defendant. The defendant’s case had been that she had an entitlement to a 100 per cent interest in the land.

[2] Mr Perese for the defendant now applies for a stay of the enforcement of Thomas J’s judgment. He filed the application on 30 August 2016, the same day that he filed in the Supreme Court an application for leave to bring an appeal directly to the Supreme Court against the judgment of Thomas J.

Procedural history

[3] There is a significant procedural history which I need to outline.

[4] The defendant sought to appeal Thomas J’s decision to the Court of Appeal. I am told that because the appeal was filed one day out of time, it was necessary for a concurrent application for leave to appeal to be decided. In the meantime, the defendant applied to Thomas J for a stay of enforcement of her judgment. The plaintiffs did not oppose the application on the pragmatic basis that the judgment should be stayed in the interim until the application for leave to appeal was
determined by the Court of Appeal. Accordingly, Thomas J granted an interim stay.2

[5] The Court of Appeal declined the defendant’s application for leave to appeal.3

The Court of Appeal considered the merits of the defendant’s appeal and rejected
those merits in very strong terms. In equally strong terms, the Court of Appeal approved the overall reasoning of Thomas J.

1      Read & Ors v Almond [2015] NZHC 2797.
2      Read & Ors v Almond [2016] NZHC 297.
3      Almond v Read & Ors [2016] NZCA 147.

[6] The future of the stay of enforcement granted by Thomas J came back before her on 16 May 2016. Of course, there was no basis for the interim stay to continue and the defendant consented to the stay being discharged.

[7] The plaintiffs sought orders to enable the property to be sold and the proceeds divided in accordance with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Almond v Read

Details

AGLC: Almond v Read [2016] NZHC 2137
Case: [2016] NZHC 2137
Decision Date: 8 September 2016

CaseChat Overview and Summary

Almond v Read involved a dispute over the nature and extent of interests in a piece of land. Janferie Maeve Almond, the applicant, sought to enforce a constructive trust judgment awarded to the plaintiffs, Bruce James Read, Gladys Read, and Christopher John Read, by Thomas J in November 2015. Almond contested the judgment, arguing for a 100 per cent interest in the property, while the plaintiffs maintained their respective shares. The case progressed through the Court of Appeal, which rejected Almond’s appeal, strongly endorsing Thomas J’s reasoning. Subsequently, Almond applied for a stay of enforcement of Thomas J's judgment, arguing for exceptional circumstances to allow an appeal directly to the Supreme Court.

The primary legal issue before Brewer J was whether a substantial miscarriage of justice would likely result if Thomas J's judgment were enforced, considering Almond’s application for leave to appeal to the Supreme Court. Brewer J reviewed the procedural history, the detailed submissions by Almond’s counsel, and the strong endorsement of Thomas J’s judgment by the Court of Appeal. The Court considered the interests of all parties, including the plaintiffs, one of whom was Almond’s 92-year-old mother. Despite the emotional and financial implications for Almond, Brewer J found that the arguments presented did not meet the high threshold for a substantial miscarriage of justice.

Brewer J declined Almond’s application for a stay, noting the plaintiffs' prolonged denial of the benefits of their judgment and the limited time remaining for the elderly plaintiff to enjoy her awarded interest. The reasoning emphasised that the term "miscarriage of justice" encompasses the interests of all parties, not just the defendant. Consequently, Brewer J ruled that enforcing Thomas J’s judgment would not likely result in a substantial miscarriage of justice.

Brewer J's decision underscored the importance of adhering to court orders and the need to balance the interests of all parties involved. The judgment reinforced the high threshold required for granting a stay of enforcement, particularly in cases where the Court of Appeal has already endorsed the original judgment.

Orders