Auton v Auton

[2020] NZHC 981

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000144

[2020] NZHC 981

BETWEEN

ANDREW MYERS AUTON

Applicant

AND

VALERIE BEATRICE AUTON

Defendant

Conference:	11 May 2020
Counsel:	P N Allan for Applicant (and Applicant in person) H A Evans and S B Henry for Respondent
Judgment:	13 May 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

[Stay of Judgment Application]

This judgment was delivered by me on 13 May 2020 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

AUTON v AUTON (Stay of Judgment Application) [2020] NZHC 981 [13 May 2020]

The interim stay

[1]    In a judgment of 7 May 2020, I dismissed the applicant’s application  under   s 143 Land Transfer Act 2017 to sustain his caveat over a property at 47 Aorangi Road, Christchurch. Late in the afternoon of 8 May 2020, an emailed request from the applicant for a stay of the judgment was put before me. No formal application for a stay was made and no appeal from the judgment has been filed. Despite this, because it was known the respondent intended to sell the property, I ordered an interim stay without hearing from the respondent. I directed that this interim order would be reviewed on 11 May 2020.   At a hearing conducted by telephone  conference on    11 May 2020, I decided that the interim order would be discharged. I now provide my reasons in writing.

Background

[2]    The facts of this case can be found in my judgment of 7 May 2020. For present purposes the following matters are relevant.

[3]    On 26 February 2020, the  applicant  lodged  his  caveat  (the  caveat)  over 47 Aorangi Road, Christchurch after he learned the respondent had placed the property on the market for sale.

[4]    On 5 March 2020, the respondent entered into an agreement to sell the property. Settlement was agreed for 8 May 2020. The respondent then applied to the Registrar-General of Land to lapse the caveat and notice of this was given to the applicant by letter dated 11 March 2020.

[5]    On 25 March 2020, the applicant filed his application that the caveat not lapse, and Gendall J made an interim order that the caveat was not to lapse pending further order of the Court.

[6]    On 16 April 2020, the respondent filed her opposition to the applicant’s application. Due to the impending sale of the property, she sought urgency for the hearing of the application.

[7]    On 21 April 2020, I conducted a telephone conference with counsel. I made directions for the filing of further evidence from the applicant and submissions. I also set the application down for hearing on 4 May 2020. My Minute recording those directions noted the urgency of the matter and the sale scheduled for 8 May 2020. No objection was taken to the timetable by counsel.

[8]    On 4 May 2020, the application was heard. I reserved judgment but indicated that it would issue prior to 8 May 2020. It was not suggested that if I found against the applicant a stay would be sought or that I should postpone the judgment taking effect so that a stay could be considered.

[9]    I issued my judgment during the afternoon of 7 May 2020 dismissing the application. The respondent sealed the judgment and settlement of the sale of the property by the respondent occurred during the afternoon of 8 May 2020.

[10]   Late in the afternoon of 8 May 2020, the Registrar put before me the applicant’s email asking for time to instruct his lawyer to file a stay application. Whilst he did not expressly state an appeal would be filed I inferred that was his intention. He also referred to “piles” of evidence that were not before me in making my decision.

[11]   I immediately ordered an interim stay of the judgment,1 but noted in my Minute the possibility that the property had sold. I directed that the matter would be reconsidered at 10am on 11 May 2020.

[12]   On 10 May 2020, the applicant sent a lengthy email to the court and all counsel headed “AAuton’s true account of events.” It dealt with many matters but was in large part a narrative of the applicant’s grievances against his parents and the justice system. It also dealt with his claim to an interest in the Aorangi Road property. It raised new matters that had not been before me at the hearing. I also received and approved a request from the applicant’s counsel that both he and the applicant be connected to the teleconference call.

1      Court of Appeal (Civil) Rules 2005, r 12(3)(a) and (b); Diver v Loktronic Industries Ltd [2012] NZCA 272, (2012) 21 PRNZ 254.

[13]   On 11 May 2020, I heard from counsel and also from the applicant. The applicant actively participated in the hearing. Mr Evans advised that settlement of the sale had occurred during the afternoon of 8 May 2020, before the interim stay was ordered. At the conclusion of the hearing, I made my decision not to extend the interim order and discharged it. I said that my reasons would be confirmed in writing.

[14]   On 12 May 2020, the applicant sent another email to the Court (but not to counsel). I mention it only for the purposes of disclosure as it has no bearing on my decision. In this email the applicant complained he had not had a chance to present all the relevant facts and evidence. He repeated his grievances against his parents. He expressed the hope that something could be done to assist him.

Submissions

[15]   Mr Evans submitted that as the respondent has sold the property extending the stay would be futile. He confirmed my understanding that with routine land transactions under the e-dealing system, once a dealing is submitted registration may occur almost instantaneously. Mr Allan agreed with Mr Evan’s assessment.

[16]   The applicant made submissions concerning his alleged interest in Aorangi Road, and traversed new matters. He was critical of the respondent, who he said should not have sold the property when he had lodged a caveat and should also have waited for him to file an appeal. He asserted that the buyer of Aorangi Road was aware of his caveat and that the sale of the property should not prevent the making of orders to protect his position. His agreement with the respondent to acquire the property was, he said, earlier in time and should be completed first.

Decision

[17]   The Court’s power to order a stay or interim relief to protect an appellant’s position pending an appeal arises under r 12(3) Court of Appeal (Civil) Rules 2005, which reads:

Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on an interlocutory application, –

(a)order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or

(b)grant any interim relief.

[18]   Under r 12(7) the Court may, at any time, vary or rescind an order made under r 12.

[19]   In deciding whether to order a stay or interim relief the Court balances the rights of the party who obtained the benefit of the judgment against the need to preserve the position of the party appealing. The Court must also consider the effects of the judgment on third parties.2

[20]   The power to grant interim relief under r 12(3)(b) is not unlimited and will only protect the position of the appellant that will be ruled on in the appeal. In Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd Asher J noted:3

The relief sought under r 12 must protect the position that will be ruled on in the appeal. It cannot derive from a general wish to do justice between the parties. Justice is referenced only against the issues squarely raised on the appeal.

…

Thus, Fullers are seeking interim orders which will give them relief they did not seek in their claim and are not seeking on appeal. This seems to me fatal to the application. Rule 12 is not designed to give a Court a general discretion to make any further orders it might consider just, to resolve further disputes that have arisen since the hearing. A Court cannot give relief in the jurisdictional vacuum of an unpleaded claim. The difficulty faced by Fullers in this application is demonstrated by the fact that the appeal will not be rendered nugatory by a refusal to make these orders. These orders have nothing to do with the registration of the lease or of the direction that there should be an application for a concession, sought in the cross-appeal. Nor do they have anything to do with the relief sought by Otehei in their appeal, which will be the setting aside of the orders made by Hugh Williams J. They have no direct connection to the proceedings, or execution of the judgment, and do not fall within the r 12 jurisdiction.

[21]   Here, it is not appropriate to extend the interim stay and no purpose would be served in doing so because the judgment has already been given effect. The order that the caveat lapse was sealed and submitted for registration. Following that, the sale of

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

3      Fullers Bay of Islands Ltd  v  Otehei  Bay  Holdings  Ltd  HC  Auckland  CIV-2009-404-7207, 23 February 2011 at [20] and [22].

the property to a third party was settled and the dealing submitted for registration. In those circumstances, extending the interim stay will achieve nothing at all and it should be discharged.

[22]    The applicant has challenged the buyer’s title to the property and has suggested the Court must have the power to make some unspecified order protecting his position against the buyer. There is nothing to suggest the buyer was not a bona fide purchaser for value whose title is beyond challenge from the applicant. Whether the buyer knew of the caveat does not assist the applicant when at the time of settlement the caveat had lapsed by order of the Court.

[23]   In any event, the Court cannot make an interim order affecting the buyer for the reason set out in Fullers Bay of Islands Ltd.4 The buyer was not a party to this proceeding and will not be a party to any appeal from my judgment of 7 May 2020. No orders can be made affecting his/her title to the property or the enjoyment and use of the property that his/her title confers. Such interim relief as the applicant might contemplate should be made is not what he sought in this proceeding or can seek on an appeal. If the Court were to make any order affecting the buyer, it would certainly be granting “relief in the jurisdictional vacuum of an unpleaded claim.”5 The Court cannot do that.

Decision

[24]   The interim order of 8 May 2020, that the judgment issued in this proceeding on 7 May 2020 is stayed, is discharged.

[25]No costs were sought, and no award is made.

O G Paulsen Associate Judge

4      Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd, above n 3, at [22].

5 At [22].

Solicitors:

Patient & Williams, Christchurch Young Hunter, Christchurch