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…

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.

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Details

Case: [2020] NZHC 981
Decision Date: 13 May 2020

CaseChat Overview and Summary

In Auton v Auton, the applicant sought an interim stay of judgment in relation to a decision of Associate Judge Paulsen dismissing the applicant's application under s 143 of the Land Transfer Act 2017 to sustain his caveat over a property at 47 Aorangi Road, Christchurch. The property was sold on 8 May 2020, after the applicant had lodged his caveat on 26 February 2020, and before the judgment was delivered on 7 May 2020. The respondent applied to the Registrar-General of Land to lapse the caveat, and notice of this was given to the applicant on 11 March 2020. The applicant filed his application that the caveat not lapse on 25 March 2020, and Gendall J made an interim order that the caveat was not to lapse pending further order of the Court. The respondent opposed the application and sought urgency for the hearing. The application was heard on 4 May 2020, and the Associate Judge reserved judgment but indicated that it would issue prior to 8 May 2020. The applicant did not suggest that if the Associate Judge found against him a stay would be sought or that the judgment should be postponed taking effect so that a stay could be considered. The Associate Judge issued his judgment on 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. Late in the afternoon of 8 May 2020, the applicant emailed the Registrar asking for time to instruct his lawyer to file a stay application, although he did not expressly state an appeal would be filed. The Associate Judge immediately ordered an interim stay of the judgment, but noted the possibility that the property had sold. The matter was reconsidered on 11 May 2020. The Associate Judge decided not to extend the interim order and discharged it. 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. The Associate Judge concluded that 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. The Court must balance the rights of the party who obtained the benefit of the judgment against the need to preserve the position of the party appealing, and must also consider the effects of the judgment on third parties. 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 that the relief sought under r 12 must protect the position that will be ruled on in the appeal and cannot derive from a general wish to do justice between the parties. The Associate Judge concluded that it was not appropriate to extend the interim stay and no purpose would be served in doing so because the judgment had already been given effect. The order that the caveat lapse was sealed and submitted for registration, and the sale of the property to a third party was settled and the dealing submitted for registration. In those circumstances, extending the interim stay would achieve nothing at all and it should be discharged. 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. The buyer was not a party to this proceeding and will not be a party to any appeal from the Associate Judge's judgment of 7 May 2020. No orders can be made affecting the buyer’s title to the property or the enjoyment and use of the property that his/her title confers. The Associate Judge concluded that the interim order of 8 May 2020, that the judgment issued in this proceeding on 7 May 2020 is stayed, is discharged. No costs were sought, and no award is made.

Orders