Burmester v Norsand Ltd

[2019] NZHC 3481

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-111

[2019] NZHC 3481

IN THE MATTER

of the Consumer Guarantees Act 1993

BETWEEN

PETER BURMESTER

Appellant

AND

NORSAND LTD

Respondent

Hearing:	(On the papers)
Judgment:	20 December 2019

JUDGMENT OF BREWER J

[1]    Mr Burmester has filed a notice of appeal against a decision of Judge GM Harrison delivered on 5 December 2019.1

[2]    Judge Harrison gave judgment for Norsand Ltd for $10,111.07 being the unpaid balance of two invoices rendered by it to Mr Burmester in respect of work carried out at Mr Burmester’s request on the mast to his yacht.

[3]Mr Burmester, who is unrepresented, has filed a document intituled:

Application for Stay of Execution Without Notice of Orders of Appealed Decision Harrison J.

In the Alternative Application of Stay With Notice and Application for Interim Stay Without Notice.

1      Norsand Ltd v Burmester [2019] NZDC 24286.

BURMESTER v NORSAND LTD [2019] NZHC 3481 [20 December 2019]

[4]    I am advised by the registry that Norsand Ltd is seeking to enforce Judge Harrison’s judgment by having Mr Burmester’s yacht (which is his home) seized.

[5]    Rule 20.10(1)(b) of the High Court Rules 2016 provides that an appeal does not operate as a stay of enforcement to the judgment appealed against.   However,     r 20.10(2)(b) empowers the Court to make orders by way of stay including ordering a stay of enforcement of any judgment appealed against. Any order by way of stay may relate to enforcement of the whole of a judgment or to a particular form of enforcement and may be interim.

[6]I take into account the following:

(a)Judge Harrison’s decision seems entirely orthodox and the material filed by Mr Burmester does not seem to make out a strong case on appeal.

(b)The general rule is that a party is entitled to enjoy the fruits of a judgment in its favour. Mr Burmester, therefore, has to persuade the Court that, if a stay were not granted, his appeal rights would be rendered nugatory.2

(c)The amount of the debt is relatively small.

(d)The work done was on the yacht’s mast. The yacht is Mr Burmester’s home. Seizing the yacht to sell it to recover the judgment debt would have a disproportionate effect on Mr Burmester and make nugatory his claim on appeal that he does not owe the debt.

[7]    I will grant an interim stay of a particular form of enforcement (seizing the yacht). I acknowledge this is pursuant to a without notice application but given the urgency of the matter and the impending holiday period I think it is in the interests of

2      Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).

justice that the application be without notice.3 I also waive the irregularity of the form of the application.4

[8]Balancing these matters, I make the following orders:

(a)I order a stay of enforcement of the decision of Judge Harrison against Mr Burmester, limited to a particular form of enforcement, namely the seizure of Mr Burmester’s yacht. This is an interim stay. It is subject to the resolution of Mr Burmester’s application of stay with notice.

(b)Mr Burmester is to forthwith serve Norsand Ltd with a copy of this judgment and with his application of stay with notice.

(c)The registry is to list the appeal and the application of stay with notice in the first available callover in the New Year.

[9]Leave is reserved to Norsand Ltd to apply to vary or rescind these orders.

[10]Costs are reserved.

Brewer J

3      High Court Rules 2016, r 7.23(2)(v).

4      Rule 1.5.