Calvert v Reynolds - [2015] NZHC 1469

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000910 [2015] NZHC 1469

BETWEEN
HILARY JANE CALVERT and HGW

TRUSTEES LIMITED as Trustees of
Frongopoulos Trust

CHRIS JAMES Applicants

AND

GRANT BRUCE REYNOLDS Respondent

Hearing: 18 June 2015 (By way of telephone conference)

Appearances:

M J McCartney QC for Respondent
M R Sherwood King for Applicants

Judgment:

29 June 2015

JUDGMENT OF DUNNINGHAM J

[1] The applicants, Hilary Jane Calvert and HGW Trustees Limited, as trustees of the Frongopoulos Trust, and Chris James, apply for a stay of enforcement of the judgment against them given in my decision of 9 March 2015, pending resolution of the applicants’ appeal to the Court of the Appeal and the respondent’s cross-appeal to
that Court dated 2 April 2015 and 17 April 2015 respectively.1

[2] The respondent, Grant Reynolds, opposes the application and, in addition, has made an interlocutory application for interim relief pending the appeal. Specifically he seeks an order striking out the defendant’s appeal to the Court of
Appeal unless:

1 Reynolds v Calvert [2015] NZHC 400.

(i)by 31 May 2015, or such other date as ordered by the Court, the defendants pay to the plaintiff’s solicitors Whitlock & Co., the judgment sum of $740,000 together with interest on condition that Whitlock & Co hold the sum in the name of the plaintiff, to abide the outcome of the appeal to the Court of Appeal;

(ii)by 31 May 2015, or such other date as ordered by the Court, the defendants pay to the plaintiff, Grant Bruce Reynolds, the sum of
$137,961.22, being the costs awarded to the plaintiff in accordance with the judgment of the Court of 29 April 2015, on condition that the plaintiff provides an undertaking to the Court to reimburse the sum to the defendants if the defendants’ appeal is successful;

(iii)the defendants undertake to prosecute their appeal by getting a fixture as soon as possible and before the end of 2015 (if available), including seeking entry to Fast Track as prescribed in Practice Note – Fast Track as soon as possible.2

[3] Matters have evolved through the exchange of supporting affidavits and the position is now that the applicants have provided a bank guarantee in the sum of
$1,150,000, which is a sum sufficient to cover the judgment sum and costs, plus the interest which it is anticipated will accrue during the appeal process.

[4] In those circumstances the applicants say that the concerns the respondent had about securing payment are addressed. They also say the case on appeal is prepared and is close to filing so there is no need to involve the Fast Track process, nor is the appeal one which the Court of Appeal would normally direct through that process. As a consequence they say there is no need to grant the interim relief which
is sought by the respondent.

2 Practice Note – Fast Track [2012] 1 NZLR 269.

Legal principles

[5] The principles the Court must take into account in determining…

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 Calvert v Reynolds

Details

AGLC: Calvert v Reynolds [2015] NZHC 1469
Case: [2015] NZHC 1469
Decision Date: 29 June 2015

CaseChat Overview and Summary

In Calvert v Reynolds, the applicants, Hilary Jane Calvert and HGW Trustees Limited, sought a stay of enforcement of a judgment against them. The respondent, Grant Bruce Reynolds, opposed the application and sought interim relief pending the appeal. The applicants argued for a stay of enforcement, citing their bona fide intention to prosecute the appeal, the provision of a bank guarantee, and the potential impact on third parties. They also highlighted the novelty and importance of the questions involved and the public interest in the proceedings. Conversely, Reynolds sought specific conditions for the stay, including payment of the judgment sum and costs, and sought to expedite the appeal process.

The court considered the principles governing stay applications, balancing the rights of the successful litigant against the need to preserve the position in case of a successful appeal. The court accepted the applicants' provision of a bank guarantee as sufficient security for the payment of the judgment sum, interest, and costs, and found no need for further requirements sought by Reynolds. The court also decided that the stay should extend to the completion of the appeal process, including any Supreme Court appeal, to avoid inefficiencies. Regarding the costs judgment, the court saw no reason to differentiate between the stay of the judgment sum and the costs judgment, given both would have to be met by the applicants from the same resources. The court rejected the respondent's requirement for fast tracking the appeal, noting the applicants were progressing the appeal without delay and that the case was not suitable for fast tracking.

Accordingly, the court granted a stay of enforcement of the judgment pending the resolution of the appeals. The court also reserved leave to the respondent to apply for review of the stay if there were any changes in circumstances, including delays by the applicants in pursuing their appeals. No costs were awarded to either party, with costs to lie where they fell.

Orders