Dorbu v Barfoot and Thompson - [2010] NZCA 216

IN THE COURT OF APPEAL OF NEW ZEALAND
CA164/2010
[2010] NZCA 216
BETWEENJOHN EVANS DORBU

Applicant

ANDBARFOOT AND THOMPSON LTD

Respondent

Hearing:18 May 2010

Court:Arnold, Ellen France and Baragwanath JJ
Counsel:Applicant in person

T Rea for Respondent

Judgment:28 May 2010 at 2.30pm

JUDGMENT OF THE COURT

AThe application for a stay of execution and stay of proceedings is declined.
BThe applicant must pay the respondent costs on the same footing as for a standard application for leave to appeal on a band A basis and usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
[1] Mr Dorbu applies under Rule 12 of the Court of Appeal (Civil) Rules 2005 for two orders for stay. They concern:
(a)the execution of an order for costs and security made by Associate Judge Abbott in the High Court as a condition of adjournment of a bankruptcy application; and
(b)the further pursuit of the bankruptcy proceedings in that Court pending the hearing and determination of:
(i)his appeal to this Court against the costs and security order;
(ii)an application to the District Court to set aside a default judgment on which the security order and part of the costs order are based.

[2] The grounds notified in the notice of appeal were:
(a)the pending application to the District Court to set aside the default judgment and the appeal to this Court have merit and are likely to succeed;
(b)the appeal would be rendered nugatory unless stays are ordered;
(c)the effect of the High Court’s order was punitive.

[3] The applicant’s written submissions added:
(d)the Judge lacked jurisdiction to impose as a condition of adjournment that Mr Dorbu pay into Court the amount of the claim;
(e)the sanction imposed by the Judge was disproportionate to the circumstances;
(f)Mr Dorbu did not receive a proper hearing and his right to justice under s 27(1) of the New Zealand Bill of Rights Act 1990 was infringed.

[4] In his oral argument Mr Dorbu sought leave to add:
(g)the creditor’s application is invalid because it was issued before the time for compliance with the bankruptcy notice had expired;
(h)the order of the Associate Judge contravened s 42 of the Insolvency Act 2006.

Context of application
[5] The judgment creditor (Barfoots) is a well-known Auckland land agent. Mr Dorbu appointed it sole agent for the sale of four properties. During the term of the agency contract, which was to expire on 31 May 2008, Barfoots asked Mr Dorbu to provide for funds to pay for marketing. Mr Dorbu declined to do so. On 7 May 2008 and therefore before the agreed expiry date Mr Dorbu contracted to sell one of the properties for $200,000 and on 22 August he settled the sale. When Barfoots learned of the sale it issued a proceeding in the Disputes Tribunal claiming commission of $7,500. Mr Dorbu responded with a successful application to move the proceeding into the District Court and to make a cross-claim claim against Barfoots for damages.
[6] Mr Dorbu’s statement…

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.

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Details

Case: [2010] NZCA 216
Decision Date: 28 May 2010

CaseChat Overview and Summary

Dorbu applied for a stay of execution and stay of proceedings in relation to an order for costs and security made by the High Court and bankruptcy proceedings in that Court. The application was dismissed. Dorbu sought a stay of execution of an order for costs and security made by the High Court as a condition of adjournment of a bankruptcy application and a stay of the further pursuit of the bankruptcy proceedings pending the hearing and determination of his appeal against the costs and security order and an application to the District Court to set aside a default judgment on which the security order and part of the costs order are based. Dorbu argued that the stays should be granted because the pending application to the District Court to set aside the default judgment and the appeal to the Court of Appeal had merit and were likely to succeed, the appeal would be rendered nugatory unless stays were ordered, the effect of the High Court’s order was punitive, the Judge lacked jurisdiction to impose as a condition of adjournment that Dorbu pay into Court the amount of the claim, the sanction imposed by the Judge was disproportionate to the circumstances, Dorbu did not receive a proper hearing and his right to justice under s 27(1) of the New Zealand Bill of Rights Act 1990 was infringed, the creditor’s application was invalid because it was issued before the time for compliance with the bankruptcy notice had expired and the order of the Associate Judge contravened s 42 of the Insolvency Act 2006. The Court of Appeal considered the appropriateness of granting a stay and found that the application for a stay of execution and stay of proceedings should be declined. The Court held that Dorbu had not demonstrated that the appeal may be rendered nugatory by the lack of a stay, that the successful party will be injuriously affected by the stay, that Dorbu had bona fides as to the prosecution of the appeal, that the effect on third parties, the novelty and importance of questions involved, the public interest in the proceeding, or the overall balance of convenience and the status quo favoured Dorbu. The Court held that Dorbu had not established any of the grounds upon which he sought a stay, and that the balance of convenience was overwhelmingly in Barfoots’ favour. Dorbu must pay Barfoots costs on the same footing as for a standard application for leave to appeal on a band A basis and usual disbursements.

Orders