Dilworth Trust Board v Chen
[2014] NZHC 610
•28 March 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-004948 [2014] NZHC 610
UNDER the Insolvency Act 2006 IN THE MATTER OF
the bankruptcy of Kun Wei Chen, Judgment Debtor
BETWEEN
DILWORTH TRUST BOARD Judgment Creditor
AND
KUN WEI CHEN Judgment Debtor
Hearing: 10 March 2014 Appearances:
S J Davies-Colley for Judgment Creditor
Judgment Debtor in person, with Mr Augustine Lau as
McKenzie friendJudgment:
28 March 2014
JUDGMENT OF ASSOCIATE JUDGE SMITH
DILWORTH TRUST BOARD v KUN WEI CHEN [2014] NZHC 610 [28 March 2014]
[1] The judgment debtor (the Applicant) seeks to set aside a bankruptcy notice (the Notice) issued by the judgment creditor (Dilworth) on 22 November 2013. He also applies for a “stay”.
[2] The basis for the issue of the Notice was a judgment of this Court entered at Auckland on 7 June 2012, under which the Applicant was ordered to pay Dilworth a total of $430,125.59, including costs and interest to the date of judgment.1
[3] The judgment entered on 7 June 2012 followed an earlier judgment of the Court dated 20 March 20122, in which Associate Judge Sargisson entered summary judgment, on liability issues only, in favour of Dilworth against the Applicant and six other defendants.
[4] The proceeding in which summary judgment was entered arose out of a lease of certain commercial premises owned by Dilworth at 480 Broadway, Newmarket, Auckland. The lease was entered into in January 2009 between Dilworth as lessor, and a company called Jack’s Ventures Limited, as lessee. The premises were to be used for the operation of a greengrocer’s business.
[5] The Applicant, together with three other individuals, were guarantors under the Deed of Lease, and they were jointly and severally liable to pay the rent and observe the other obligations of Jack’s Ventures under the lease. Jack’s Ventures was the first defendant in the summary judgment proceeding mentioned above; the Applicant and the three other guarantors were named as defendants two to five, and the sixth and seventh defendants were assignees of the lease.
Background
[6] The background of the dispute is conveniently summarised in the judgment of Sargisson AJ on liability issues dated 20 March 2012, as follows:
[8] In February 2009 the rent was reviewed in accordance with the provisions of the lease. An annual rental of $110,467 plus GST per annum was claimed and was not objected to.
1 Dilworth Trust Board v Jack’s Venture’s Ltd HC Auckland CIV-2011-404-8312, 1 June 2012.
2 Dilworth Trust Board v Jack’s Venture’s Ltd HC Auckland CIV-2011-404-3312, 20 March 2012.
[9] Following the rent review Jack’s Ventures paid the new rate for a period of 16 months until it sold its greengrocer business to the sixth defendant, Maharaj & Associates Limited. On 15 July 2010 Dilworth consented to Jack’s Ventures assignment of the lease to Maharaj and the parties executed a deed of assignment and covenant. The seventh defendant, a principal of Maharaj, guaranteed the assignee’s obligations.
[10] In August 2010 Maharaj fell into arrears in respect of rent and outgoings payable. On 24 September 2010 Dilworth served a Lease Default Notice on each of the defendants. The defaults were not remedied and on 16
December 2010 Dilworth cancelled the lease and re-entered the property. Dilworth claims that at the termination of the lease it was owed $41,781.40 in unpaid rent and $4,670.13 in unpaid outgoings. Dilworth also claims costs for the cleaning and painting of the property for re-letting, rent for the period when the property was untenanted and a letting fee for the new tenancy. Also there is a claim for the significant reduction in the rental income under the replacement tenancy.
[11] The default on payment of rent and outgoings that is the subject of the summary judgment application only relates to the period after the lease was assigned by Jack’s Ventures to Maharaj.
[12] It is the defendants’ position that Dilworth must bear some responsibility for Council works to the Newmarket overhead motorway which Jack’s Ventures claims caused losses to its business.
Opposition to summary judgment
[13] The greengrocer business was purchased by Jack’s Ventures for
$360,000 in the expectation of a net profit return of between $100,000 and
$200,000 per annum. The defendants say they were forced to sell the business to Maharaj for $180,000.
[14] The defendants rely upon the wording of the preamble in a schedule to the lease:
These rules and regulations are to be observed by the Lessee, and are made for the safety, care, operation and cleanliness of the Building, and for the preservation of good order, safety, and comfort of the Lessee and visitors to the Building.
[15] The defendants claim that because of the nearby motorway works Jack’s Ventures and its customers could not enjoy the comfort it says was promised by the lease terms. The defendants say the works caused the closure of roads which provided access to the shop.
[16] The defendants claim Dilworth was aware of the impending upgrading works and must have been aware for at least two years before the upgrading works began on a large scale in September 2009. They also claim that Dilworth’s actions to lease the premises for more than they were worth while aware of the likely impact of the impending road works, was misleading and deceptive conduct and in breach of s 9 of the Fair Trading Act 1986.
[17] The defendants are aware that Dilworth’s substitute tenant pays
$6,250 plus GST per month which is about $4,000 less than was charged to
Jack’s Ventures.
[18] The defendants complain there was noise, air, visual and destruction pollution caused to surrounding areas by the motorway works.
[19] The defendants have given notice of a counterclaim in the sum of
$369,201.11.
[20] In summary the defendants believe the actions of Dilworth were dishonest and commercially reprehensible.
[7] The Associate Judge concluded that the terms of the lease were fatal to the
Jack’s Ventures case. As the learned Associate Judge put it:3
… Dilworth was under no obligation or covenant to ensure that Jack’s Ventures business was uninterrupted by the road works that were being undertaken by an unrelated third party in a location that was neither adjacent to nor adjoining the leased premises.
[8] In the same paragraph of her judgment the Associate Judge described Jack’s Ventures’ claims as “unsupported by reliable evidence”. The Associate Judge also found that there was “a lack of evidence to show a loss in the business value was caused by the council’s motorway works”.
[9] The Associate Judge also found it clear from the Deed of Lease that Dilworth had made no warranty as to the existing or continuing suitability of the premises for the lessee’s purposes, and that Jack’s Ventures occupied the property at its own risk.4
[10] The lease contained the usual covenant by the lessor to permit the lessee to quietly hold and enjoy the premises, “without interruption by the lessor or by any person claiming under the lessor”, but the Associate Judge found that the covenant contained no requirement for Dilworth to ensure that third parties do not interfere with the tenants’ use and enjoyment of the leased premises.5
[11] The Associate Judge found that the lease could be assigned, and that this would not release the lessee and, consequently, the guarantors, from their liability
3 At [21].
4 At [22].
5 At [25].
under the lease.6 The Court held that the Applicant and the other guarantors were jointly and severally liable together with Jack’s Ventures for all rental and monies payable by the lessee under the lease.7 The Associate Judge said that she was satisfied that there was no validity in the defendants’ proposed counterclaim.
[12] The Notice was served on the Applicant pursuant to an order for substituted service, on 10 December 2012.
The application
[13] By notice of application dated 12 December 2013, the Applicant sought orders:
(a) Setting aside the bankruptcy notice; (b) To “stay”.
[14] The grounds stated in the application were as follows:
(a) The Applicant has applied for special leave to appeal to the Court of
Appeal;
(b)The application for special leave could not have been filed earlier, as it was not clear until 1 December 2013 that the Applicant would not reach a settlement with Dilworth;
(c) The motorway project has just recently been completed, and a lot of new evidence could be captured on camera, and so this would allow the judges to compare the original situation when the Broadway property was leased to Jack’s Ventures with the different condition of the property when construction of the motorway began and the
litigation started in 2011;
6 At [33].
7 At [34].
(d)Due to that situation, new evidence can be presented to the Court of Appeal. The new evidence will clearly show that Dilworth owed the Applicant a duty of care, and was negligent in failing to provide a “comfort situation” to operate the business as stated in the lease agreement.
[15] The application was supported by affidavits sworn by the Applicant and Mr Augustine Lau, who was present at the hearing on 10 March 2014 in the capacity of a McKenzie friend to the Applicant. Mr Lau’s affidavit was concerned only with matters relating to the filing and service of the application to set aside the Notice and for a stay.
[16] In his supporting affidavit, the Applicant said that the lease with Dilworth was signed on his behalf by his attorney, without his knowledge. He contended that he and his family had been cheated by the second named defendant in the summary judgment proceeding. The Applicant repeated the allegation in the application that Jack’s Ventures got into financial difficulties because of Dilworth’s lack of care and negligence in not providing a comfortable environment for Jack’s Ventures to operate its greengrocer shop.
[17] The Applicant stated in his affidavit that all notices relating to the Council’s motorway extension work had been sent to Dilworth, but they were never sent on by Dilworth to Jack’s Ventures. The Applicant went on to state that, when the litigation started in 2011, the Broadway property was leased to a third party at a lower rent. The lower rent was said to be clearly the result of the motorway extension works.
[18] The Applicant stated that he attempted to settle the litigation with Dilworth, but no settlement could be reached.
[19] The Applicant stated in his affidavit that “new evidence can be obtained after the motorway extension completed recently as it is hard for the Judge that determined the case in 2011 to had a fair judgment without the current new evidence that I will provided to the Court during the hearing”.
[20] Although the Applicant’s affidavit was written in English, he required a Mandarin interpreter to assist him at the hearing on 10 March 2014. In light of that circumstance, I had both the interpreter and the Applicant sworn, and the Applicant then confirmed on oath the contents of the (English language) affidavit which he had filed in support of the application.
[21] In its notice of opposition, Dilworth raised various alleged defects in the application, and in the service of the application. Dilworth also pleaded that the application failed to disclose any genuine triable counterclaim, cross-claim or set off which equalled or exceeded the amount of the judgment debt, and which the Applicant had been unable to use as a defence in the summary judgment proceeding. Dilworth contended that the application was an attempt to re-litigate the Applicant’s unsuccessful opposition to the summary judgment application, and did not disclose any new defence or evidence which could not have been advanced at that stage. Dilworth pointed out that the impact of the motorway project on the tenant’s business was unsuccessfully raised as a defence in the summary judgment proceeding. Finally, Dilworth opposed the application on the grounds that the Court of Appeal registry had not received any application for leave to appeal the High Court judgments on the Notice was based.
[22] No reply affidavits were filed.
[23] The Applicant filed a memorandum in support of the application on
22 February 2014, and Dilworth provided written submissions in opposition on 4
March 2014.
[24] It was common ground at the hearing that the Applicant has now filed papers in the Court of Appeal. Specifically, the Applicant has filed an application for extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005. There was some question at the hearing as to when this application was accepted for filing in the Court of Appeal: the Applicant said that it was filed on 31 January 2014 (the appeal papers having been rejected on one earlier attempt by the Applicant to file them); Dilworth, on the other hand, said that the application for extension of time was not accepted for filing by the Court of Appeal until 14 February 2014.
[25] There was also some debate at the hearing as to when the application for an extension of time to appeal was served on Dilworth. The Applicant contended that service had been effected in early February 2014 (before the case was called in this Court on 13 February 2014), whereas Dilworth contended that service was effected later in February, and that the period of ten working days for it to file a memorandum in the Court of Appeal setting out why that Court should not give leave to appeal has
not yet expired.8
[26] In his memorandum of submissions, the Applicant submitted that the application should be granted following the filing of his appeal to the Court of Appeal. He went on to list a number of matters in respect of which Associate Judge Sargisson was said to have erred in her judgment on the summary judgment application, and again contended that the impact the motorway project had on Jack’s Ventures business can only be fully appreciated now that the motorway project has ended. He stated that he believes that the rent for the property has once again been raised to a similar level to that payable by Jack’s Ventures before the motorway extensions project began.
Discussion
[27] Section 17 of the Insolvency Act 2006 provides as follows:
17 Failure to comply with bankruptcy notice
(1) A debtor commits an act of bankruptcy if—
(a) a creditor has obtained a final judgment or a final order against the debtor for any amount; and
(b) execution of the judgment or order has not been halted by a court; and
(c) the debtor has been served with a bankruptcy notice; and
(d) the debtor has not, within the time limit specified in subsection (4),—
(i) complied with the requirements of the notice; or
(ii) satisfied the Court that he or she has a cross claim against the creditor.
8 Court of Appeal (Civil) Rules 2005, r 20.
(2) The form that the bankruptcy notice must take is set out in section
29.
(3) The debtor must have been served with the bankruptcy notice in New Zealand, unless the Court gave permission for the service of the notice on the debtor outside New Zealand.
(4) The time limit referred to in subsection (1)(d) is,—
(a) if the debtor is served with the bankruptcy notice in New
Zealand, 10 working days after service; or
(b) if the debtor is served outside New Zealand, the time specified in the order of the Court permitting service outside New Zealand.
(5) In this section, a creditor who has obtained a final judgment or a final order includes a person who is for the time being entitled to enforce a final judgment or final order.
(6) In this section, if a Court has given permission for enforcing an arbitration award that the debtor pay money to the creditor,—
(a) final order includes the arbitration award; and
(b) proceedings includes the arbitration proceedings in which the award was made.
(7) In subsection (1)(d)(ii), cross claim means a counterclaim, set-off, or cross demand that—
(a) is equal to, or greater than, the judgment debt or the amount that the debtor has been ordered to pay; and
(b) the debtor could not use as a defence in the action or proceedings in which the judgment or the order, as the case may be, was obtained.
[28] Under subsection 7, any “cross claim” the Applicant might have will not qualify as a basis for an order setting aside the Notice, unless it consists of a counterclaim, set-off or cross demand that the Applicant could not have used as a defence in the proceedings in which Dilworth obtained its judgment.
[29] The cases show that any cross claim relied upon under s 17(1)(d)(ii) of s 17 must be a claim of true substance – it must be a “genuinely triable claim” (Sharma v
ANZ Banking Group (NZ) Ltd9), followed by Bell AJ in Re Jacomb, ex parte
Wikeley.10
[30] The onus is on the debtor to establish that the claim could not have been set
up in the action in which the creditor’s judgment was obtained.11
[31] In this case, I am satisfied that the Applicant has produced no evidence that he has any cross claim (of an amount equal to or greater than Dilworth’s judgment debt) which he could not have used as a defence in the summary judgment proceeding. The mere fact that the Applicant has applied for an extension of time to appeal against the summary judgment cannot create any new “cross claim”, and it is quite clear that the impact of the motorway extension project (and any defences or counterclaims which might have been available to the Applicant arising out of that project) were considered in quite some detail at the hearing of the summary judgment application. The Applicant’s contention that the recent completion of the motorway extension project has resulted in new evidence becoming available cannot assist the Applicant – if there is indeed new evidence, it will not amount to a new counterclaim, set-off or cross demand: it will only be additional evidence which might or might not have had relevance to the very same cross claims which were argued unsuccessfully on the summary judgment application.
[32] Associate Judge Sargisson specifically rejected an argument that Dilworth was in breach of its “quiet enjoyment” covenant in the lease, and specifically found that that covenant contained no requirement for Dilworth to ensure that third parties did not interfere with the tenant’s use and enjoyment of the premises. The Associate Judge also found that there was a lack of evidence to show that any loss in the value of Jack’s Ventures business was caused by the Council’s works. She found that Dilworth had given no warranty as to the existing or continuing suitability of the premises for the lessee’s purposes, and that the lessee occupied the property at its
own risk.
9 Sharma v ANZ Banking Group (NZ) Ltd (1992) 6 PRNZ 386 (CA).
10 Re Jacomb, ex parte Wikeley [2013] NZHC 3034, at [37].
11 Hawkins v Young Hunter (1997) 10 PRNZ 453, at 456.
[33] In summary, it seems to me that all of the Applicant’s possible defences or claims against Dilworth were either argued at the hearing of the summary judgment application, or could have been argued on the hearing of that application.
[34] The Applicant’s memorandum dated 22 February 2014 does not give me any reason to alter that assessment. Paragraph 4 of that memorandum simply contends that the setting aside application should be granted following the filing of the application for extension of time in the Court of Appeal, and at paragraph 5 of the memorandum the Applicant appears to do no more than contend that the impact of the motorway extension project on Jack’s Ventures’ business can somehow be better appreciated now that the extension works have been completed. As noted above, even if that were correct, it could not constitute a new cross claim. The same applies in respect of paragraph 8 of the memorandum, in which the Applicant says that he believes the rent for the premises has now risen to a level similar to that paid by Jack’s Ventures when it was the lessee.
[35] The remainder of the memorandum refers to aspects of the summary judgment with which the Applicant now takes issue. These cannot constitute a new cross claim which was not available to the Applicant in the summary judgment proceedings.
[36] The Applicant produced further written submissions at the hearing on
10 March 2014, but again they did not point to the existence of any new cross claim which the Applicant could not have argued in the summary judgment proceeding. The Applicant repeated submissions made earlier to the effect that the completion of the motorway extension project enables a better comparison between the position as it stood when the works were being carried out, and the position as it was before the works had commenced. As stated above, that is essentially a submission directed at showing that the findings made on a defence/cross claim which was argued in the summary judgment proceeding was wrong, because of the alleged existence of new evidence. It is not a new cross claim.
[37] The Applicant also referred in his submissions to his intention to file a counterclaim. However, in the course of his submissions he confirmed that the
proposed counterclaim was in fact the same counterclaim as that referred to in the decision of Associate Judge Sargisson on the summary judgment application.
[38] Finally, the Applicant submitted that Dilworth should be pursuing other defendants against whom it obtained summary judgment, before the Applicant. There does not seem to me to be any substance in that submission. There is nothing to prevent Dilworth from enforcing its judgment against any judgment debtor it sees fit to pursue.
[39] Having considered all of the evidence and submissions, I am not satisfied that the Applicant has shown that he has any cross claim against Dilworth in terms of s 17(1)(d)(ii) of the Insolvency Act 2006. I therefore decline to set aside the Notice on that ground.
The “stay” application
[40] The Applicant also sought a “stay”. He did not state any legal basis for that application, or say what it was he wanted to have “stayed”. In the course of the hearing on the morning of 10 March 2014 it appeared that this part of the application was an application to the Court, in the exercise of its bankruptcy jurisdiction, to stay further proceedings to bankrupt the Applicant. At the hearing, Dilworth’s counsel appeared to read the application for stay in that way, submitting that if the Notice were not set aside by the Court, that would be the end of the proceedings on the Notice, and there would be nothing to “stay”. Any application to the Court which Dilworth might subsequently make for an order adjudicating the Applicant bankrupt,
would be a fresh proceeding.12
[41] Following the hearing, it occurred to me that the Applicant’s application for a “stay” might have been intended as an application under r 12(3) of the Court of Appeal (Civil) Rules 2005 for a stay of proceedings on, or execution of, the summary judgment itself. That possible interpretation of the application not having
been addressed at the hearing on the morning of 10 March 2014, I issued a Minute
12 Re Jacomb, ex parte Wikeley [2013] NZHC 3368 at [8].
inviting Dilworth to file and serve a memorandum addressing the following questions:
(i) Is subparagraph (b) of the application to be regarded as an application under r 12(3) of the Court of Appeal (Civil) Rules 2005 for a stay of the proceeding in which summary judgment was given, or for a stay of execution on the summary judgment?
(ii) If it is, what is the effect on the present application of the provisions of s 17(1)(b) of the Insolvency Act 2006?
(iii) If the application at subparagraph (b) is to be treated as an application for a stay under r 12(3)(a) or (b) of the Court of Appeal (Civil) Rules 2005, should such a stay be granted, and if so, on what conditions?
[42] Dilworth was asked to file and serve its memorandum addressing those questions within seven days, and the Applicant was given a further seven days to file a memorandum strictly in reply. I have received and considered memoranda filed by both parties.
[43] Having considered the parties’ further memoranda, I am not prepared to treat the applicants’ application for a “stay” as an application under r 12(3) of the Court of Appeal (Civil) Rules 2005. Nor, if I am wrong in that and the application should be treated as an application under that rule, am I prepared to grant the stay which has been requested.
[44] First, the application was defective in a number of respects. It was filed in the bankruptcy proceeding, whereas it should have been filed in the summary judgment proceeding.13 Secondly, the application did not comply with r 7.19 of the High Court Rules, which requires the applicant to set out the grounds justifying the relief sought, and to refer to any particular enactments or principles of law or judicial decisions on which the applicant relies.
[45] Dilworth referred in its memorandum to the decision of Wylie J in Premier
Events Group Ltd v Beattie, a case in which the plaintiffs in one High Court proceeding sought further and better discovery in a separate High Court
13 The summary judgment proceeding is CIV-2011-404-3312, Auckland Registry
proceedings.14 The Judge noted that separate applications should have been filed in both proceedings.15 There was also an application for an order varying discovery orders which had been made, but nothing in the body of the application to indicate what variation was sought. Wylie J said:16
The relief sought and the grounds justifying that relief are not advanced either in the application or in the supporting documents. The consequence is that [counsel for the respondent on the application] could not meaningfully address the suggestions made by [the applicant’s counsel] in the course of today’s hearing. Understandably, he has no instructions in relation to the same.
[46] The application for a variation of the discovery order was accordingly dismissed.
[47] In this case, the applicant in his submissions in response to the Court’s minute dated 10 March 2014 submitted that the application for a “stay” should be regarded as an application for a stay of execution on the summary judgment, but he made no attempt to address the deficiencies in the “stay” application which were highlighted by Dilworth. He submitted that at the hearing of the application on 13
February 2014 “all parties agreed that the set aside application” related to the summary judgment proceeding and to an earlier (expired) bankruptcy notice issued by Dilworth. But the “set aside” application in this context could only sensibly be taken as relating to the bankruptcy notice issued by the Court on 22 November 2013. There was nothing else which the Court sitting in its bankruptcy jurisdiction could possibly have had any jurisdiction to “set aside”. The remainder of the applicant’s submission consisted essentially of the argument that, an application now having been filed in the Court of Appeal for an extension of time to file an appeal against the summary judgment (and Dilworth not having notified the Court of Appeal in time that it intends to oppose that application), the stay should be granted on that ground alone. The submission went on to set out various contentions directed to the merits of the proposed appeal and the various bases on which the applicant says the
Associate Judge erred in her decision on the summary judgment application.
14 Premier Events Group Ltd v Beattie HC Auckland CIV-2010-404-3178, 30 September 2011.
15 At [12].
16 At [27].
[48] In the event that I am wrong in finding that the “stay” application should be dismissed on account of the deficiencies in form referred to above, the result would be the same. The circumstances set forth by the applicant do not in my view justify the granting of an order for a stay of execution on the summary judgment.
[49] First, the summary judgment on liability was entered as long ago as 20 March
2012, and the applicant made no attempt to commence an appeal until December
2013, long after the period for appeal to the Court of Appeal had expired. The applicant has attempted to explain that long delay by referring to discussions having taken place with Dilworth in an attempt to reach a settlement of the judgment debt, but he has not put forward any evidence of an agreement with Dilworth for an extension of time for him to appeal the summary judgment. An appeal to the Court of Appeal could have been filed in time if the applicant had elected to do so, with any settlement discussions taking place while the parties waited for the hearing of the appeal.
[50] A factor relevant to the discretion to order a stay of proceedings under r 12(3), is the bona fides of the applicant as to the prosecution of the appeal, including any delays in prosecuting the appeal.17 Any significant delay in commencing or prosecuting an appeal can be a strong indicator as to a lack of bona fides.
[51] Also, I accept Dilworth’s submission that declining a “stay” on the present application will not render nugatory any rights the applicant may have to appeal the summary judgment. There is express power in the Insolvency Act for the Court to order a halt to any adjudication application which Dilworth might commence against the applicant, if there is an appeal pending against the judgment on which the adjudication proceeding is based.18 And if the Court of Appeal in this case determines that Dilworth is too late to oppose the applicant’s application for leave to appeal (as the applicant contends), it should be possible for the applicant to obtain a
decision on his extension of time/leave application fairly quickly.
17 Yan v Mainzeal Property and Construction Ltd & Anor [2014] NZCA 86 at [25].
18 Insolvency Act 2006, s 42.
[52] Other relevant factors to be considered on an application under r 12(3) are the apparent strength of the appeal, the novelty and importance of the questions involved, and whether the successful party (Dilworth in this case) will be injuriously affected by the stay.19 In this case, I do not see any particular novelty or importance raised by the issues the applicant wishes to raise on appeal. The judgment of Associate Judge Sargisson appears to have been based primarily on the provisions of
the relevant lease, and I see nothing particularly unusual or surprising in the conclusions reached by the Associate Judge. It is not clear to me at this stage whether any point might be successfully advanced on appeal, and if so, which point.
[53] As for the effect on Dilworth of granting a stay, this seems to me to be a factor of somewhat lesser importance, particularly given that it itself elected to delay taking steps to execute the summary judgment.
[54] Overall, the factors which in my view tell against the granting of a stay are the following:
(1) The applicant’s long delay in filing an appeal.
(2)The fact that, at this stage, the applicant has only made an application for extension of time to appeal. No leave has yet been granted.
(3)The fact that it should be known fairly soon, and certainly before any application for adjudication which Dilworth might file is dealt with, whether the applicant has succeeded in obtaining leave to appeal. Particularly if leave to appeal has been obtained, it will be open to the applicant at that point to make an application for a halt to any bankruptcy proceedings which may have been issued, under s 42 of the Insolvency Act 2006.
[55] Having regard to all of those considerations, and to the submissions made by the parties, I am of the view that there is no sufficient basis for an order for a stay of
the proceedings under r 12(3) of the Court of Appeal (Civil) Rules 2005.
19 At [25].
[56] For the foregoing reasons, both the application to set aside the Notice and the application for a “stay” are refused.
Costs
[57] Dilworth is entitled to an order for costs. It may file a memorandum on the quantum of those costs, within seven days from the date of this judgment. The applicant will have a further seven days after service of any such memorandum to file a reply memorandum. Service of any such costs memorandum is to be effected by Dilworth in the manner set out at paragraph [3](f) of the Court’s minute dated
13 February 2014.
“Associate Judge Smith”
Solicitors:
Jackson Russell, Auckland for Judgment Creditor
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