Dobson v Milloy

[2014] NZHC 3368

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-463-000403 [2014] NZHC 3368

BETWEEN

KERRY BRYAN DOBSON

Plaintiff/Counterclaim Defendant

AND

HUGH MILLOY and HELEN RUTH MILLOY as Trustees of the HUGH MILLOY FAMILY TRUST

First Defendants/Counterclaim Plaintiffs

HUGH MILLOY and HELEN RUTH MILLOY as Trustees of the HELEN MILLOY FAMILY TRUST

Second Defendants/Counterclaim
Plaintiffs

CLUSEVAU HOLDINGS LIMITED Counterclaim Defendant

Hearing:

(On the papers)

Counsel:

Paul Dalkie and Greg Stringer for the Plaintiff/Counterclaim

Defendant

Robert Hollyman for the First and Second Defendants/ Counterclaim Plaintiffs

Judgment:

19 December 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by  on 19 December 2014 at 3:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

DOBSON v MILLOY & ORS [2014] NZHC 3368 [19 December 2014]

[1]      Mr Dobson was a guarantor of a loan alongside the Hugh Milloy Family

Trust and the Helen Milloy Family Trusts (“the Milloy Trusts”).

[2]      There is dispute as to the amount owed by Mr Dobson under the guarantee. On the 11 July 2014 I released a judgment determining the liability of the guarantors. On the 25 September 2014 I made a decision as to the quantum and costs flowing from the liability decision.

[3]      Mr Dobson appealed the decisions and the Milloy Trusts have cross appealed. The appeals are to be heard in the Court of Appeal in 2015.

[4]      The Milloy Trusts seek a stay of execution of judgment until the appeals are determined on the basis that there is a serious risk that the plaintiff will be unable to repay the judgment sum if the defendants are successful on appeal as he has no substantial assets, no regular income and is currently living in rental accommodation for which he appears to not have to pay. Furthermore he is involved in a start up business based in the Isle of Man and requires start up funding.

[5]      Mr Dobson opposes the stay on the basis that his appeal is bona fide and likely to succeed in increasing both the judgment and costs sum. He argues that he will be injuriously affected by a stay as he will not be able to access the fruits of his judgment, and the defendants will have time to ‘judgment proof’ themselves.

[6]      The principles of a stay of execution are well established.1    Essentially the Court must balance the competing rights of each party and arrange matters to allow the appeal Court to do justice.

[7]      The risk  of the plaintiff being unable to  repay the judgment  sum  if  the defendants’ are successful must be weighed against Mr Dobson’s entitlement to enjoy the fruits of the judgment. I am satisfied that the Milloy trusts have arguable grounds of appeal and that the defendants’ rights will be rendered nugatory if a stay

is not granted and overall the balance of convenience favours granting a stay.

1 Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48.

[8]      The  Milloy  Trusts  are  granted  a  stay  of  enforcement  of  the  orders  and judgment made on 11 July and 25 September 2014 until the determination of the

appeals.

Moore J

Solicitors:

Chapman Tripp, Auckland

Inder Lynch, Papakura