Copland v Goodwin - [2012] NZHC 996

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2004-412-000346

CIV-2008-412-000662 [2012] NZHC 996

BETWEEN BRIAN STEWART COPLAND Plaintiff

ANDWAYNE ERNEST GOODWIN Defendant

Hearing: 11 May 2012 (at Christchurch) Counsel: J C D Guest for Plaintiff
T J Shiels for Defendant

Judgment: 11 May 2012

Reasons: 15 May 2012

REASONS FOR JUDGMENT OF GENDALL J

[1] When this matter was heard on 11 May 2012, because of the exigencies of time I delivered an oral judgment. The following records it, with some corrections as to grammar, and correcting a misunderstanding the Court had as to Justice John Hansen granting a judgment which was, rather, made on admission. These reasons also provided citations for some matters mentioned in the decision.

[2] The defendant applied, first, to stay the execution of enforcement of a judgment and, secondly, to set aside a judgment obtained on admission by the plaintiff against the defendant five and a half years ago on 11 October 2006. However, the Court is not required to decide on its merits that application to set aside the judgment today.

[3] The application for stay arises because on 12 May 2012, a property owned by the defendant or his interests in Te Anau was to be auctioned pursuant to a judgment

COPLAND v GOODWIN HC DUN CIV-2004-412-000346 [11 May 2012]

or order made by Associate Judge Christiansen on 26 January 2009 in proceedings CIV-2008-412-662. That was an order directing the Registrar or Sheriff of the Dunedin High Court to sell the property. The judgment which is sought to be set aside is that made on an admission filed and entered on 11 October 2006 in proceedings CIV-2004-412-346 (which I incorrectly referred to as having been made by John Hansen J). The judgment of Associate Judge Christiansen in the 2008 proceedings was an unopposed summary judgment ordering the Registrar to sell the property.

[4] The application in its present form was commenced in a confusing way because the defendant, having instructed new counsel who understandably was not aware of the extensive background, sought to stay enforcement of a different judgment (the sale order made by Associate Judge Christiansen) to that which is now sought to be stayed and to be set aside. However, Mr Shiels for the defendant has made oral application, and it is not disputed that the Court has an inherent
jurisdiction or power where justice demands to ensure that overall justice is done.[1]

So, the “enforcement” order sought to be stayed is not the judgment sought to be set aside, but nevertheless a stay of the implementation of the judgment ordering the sale could be made as it had its genesis under the original judgment by admission.

[1] Pinson v Pinson (1991) 5 PRNZ 177.

[5] The essence of the application is that that sale should not proceed because the basic underlying judgment by admission is the subject of the defendant’s present application to set it aside. That application, if proceeded with, will require full argument. Mr Shiels, on behalf…

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 Copland v Goodwin

Details

AGLC: Copland v Goodwin [2012] NZHC 996
Case: [2012] NZHC 996
Decision Date: 11 May 2012

CaseChat Overview and Summary

In the case of Copland v Goodwin, the defendant, Wayne Ernest Goodwin, sought to stay the enforcement of a judgment and to set aside a prior judgment by admission obtained by the plaintiff, Brian Stewart Copland, five and a half years earlier. The court was required to determine whether the application for a stay should be granted and whether the prior judgment could be set aside. The primary issue was whether the defendant had a substantial ground to set aside the original judgment and if justice required a stay of the enforcement of the subsequent judgment ordering the sale of property.

The court found that the defendant's application was tenuous and unlikely to succeed, as he had failed to provide a satisfactory explanation for the significant delay in seeking to set aside the judgment. The court considered the defendant's arguments under the Contractual Remedies Act 1979 and weighed them against the plaintiff's entitlement to his monetary awards. The court concluded that the defendant's application was a collateral attack on the prior judgment, which had already been dismissed by Associate Judge Faire on similar grounds. The court also noted that the defendant had not offered security to mitigate any potential prejudice to the plaintiff if the stay was granted.

The court dismissed the application for a stay and refused to set aside the original judgment. The court found that the defendant had not demonstrated a substantial risk of a miscarriage of justice and had not provided a reasonable explanation for the delay. The application to set aside the judgment was adjourned for further argument. The court ordered that the defendant pay costs to the plaintiff, including reasonable disbursements such as travel and accommodation expenses for counsel.

Orders