Dysart Timbers Limited v Nielsen and Nielsen

[2007] NZCA 563

IN THE COURT OF APPEAL OF NEW ZEALAND

CA508/07
[2007] NZCA 563

BETWEENDYSART TIMBERS LIMITED

Appellant

ANDGREGORY NIELSEN

First Respondent

ANDRODERICK WILLIAM NIELSEN

Second Respondent

Hearing:3 December 2007

Court:Glazebrook, Hammond and O'Regan JJ

Counsel:C F L Godinet and J Ropati for Appellant

C T Patterson for First Respondent
A M Swan for Second Respondent

Judgment:7 December 2007 at 10 am

JUDGMENT OF THE COURT

A        The application for a stay of execution is dismissed.

BThe appellant will have costs against the second respondent of $500 together with usual disbursements.

CThe first respondent will have costs against the second respondent of $250 together with usual disbursements.

REASONS OF THE COURT

(Given by Hammond J)

[1]       We have before us an application, nominally by the respondents, but now only by Mr Roderick Nielsen, for a stay of execution of the judgment of this Court delivered on 22 May 2007.

[2] On 30 September 2005, Ellen France J in the High Court (HC AK CIV 2004-404-1510) rejected a claim in contract by Dysart Timbers Limited (Dysart) for $213,169.39 plus interest and costs against Gregory Nielsen and Roderick Nielsen. Dysart then appealed to this Court. This Court reversed the High Court holding and awarded Dysart the sum claimed together with certain orders for interest and costs ([2007] NZCA 198).

[3]       The Nielsens then applied for leave to appeal to the Supreme Court of New Zealand against the judgment of this Court. On 9 August 2007 the Supreme Court extended the time for making an application for leave and gave leave for an appeal on certain grounds relating to the interpretation of terms of the contract between the parties ([2007] NZSC 65).

[4]       By 9 August 2007 the situation between the parties was that the Nielsens were judgment debtors to Dysart in a sum of $314,867.02, and Dysart was exerting pressure on the Nielsens through High Court bankruptcy proceedings.

[5]       At 9.23 am on 9 August the Nielsens’ solicitors sent an email to Dysart’s solicitors offering to settle the dispute between the parties for $250,000.  It was further said, “this sum can be paid on [the following] Monday at which time the leave application will be discontinued”.

[6]       The Supreme Court leave decision was handed down at 12.30 pm that same day. 

[7]       At 1.13 pm that day Dysart’s solicitor Mr Ropati accepted – or so it is conceded – the settlement offer, which had not by then been withdrawn.

[8]       There was then a dispute between the parties as to whether, in the particular circumstances, this settlement was binding on the Nielsens.

[9]       Dysart applied by way of originating application to the High Court at Auckland for a determination as to whether this settlement was valid.  On 1 November 2007 Priestley J held that there had indeed been an accord and satisfaction and settlement of the dispute between these parties whereby the Nielsens agreed to pay to Dysart the settlement sum of $250,000 (CIV 2007-404-005594).

[10]     There were certain other features of that judgment, which we need not recite here, which have since given rise to some difficulty.  An application has now been made for the recall of the judgment of Priestley J and for a stay of execution on that judgment, pending the determination of those matters.

[11]     On 21 September 2007 the Nielsens applied for a stay of execution of the judgment of this Court.  That application was made under r 12 of the Court of Appeal (Civil) Rules 2005.  It is that application which we now have before us.

[12]     When the application was called before us, Mr Godinet indicated that his interests had elected to stand on the judgment of Priestley J. 

[13]     We thereupon pressed Mr Swan as to what possible purpose could be served at this time by his interests continuing to pursue a stay application with respect to the judgment of this Court.  We add that difficulties having arisen between the Nielsen brothers, they are now separately represented.  It is only Mr Swan’s client who continues to press for a stay.  Mr Swan’s position was that the application should simply be adjourned off so that it can be brought on again, if and when it is required.  In other words, he seemed to see a precautionary value in this Court simply adjourning the application for a stay.

[14]     As against that, both Mr Godinet and Mr Paterson could see no utility at all in the application.  No present purpose is served by it.  In the event that the judgment of Priestley J in the High Court is set aside, a fresh application for a stay with respect to the judgment of this Court could be made then, if it were appropriate with regard to the circumstances of the parties as they might then be. 

[15]     We agree that the present application has no utility.  There may be room for an argument that the judgment of this Court has now been subsumed, in any event, by the judgment of Priestley J.  But we need not offer any view on that matter because the point does not presently arise.  In the result, the application for a stay will be dismissed.

[16]     Inevitably there was some argument before us as to costs.  Mr Godinet said the application had been pursued past the point where it was arguably necessary, and that pursuing the issue to a hearing had been inappropriate in the circumstances.  Broadly, Mr Swan contended that it was not until very recently – indeed until after a telephone conference before Hammond J last week – that it was made plain that Mr Godinet’s client is simply standing on the judgment of Priestley J. 

[17]     We think the justice of the case is met by allowing Mr Godinet’s client $500 for costs together with usual disbursements and Mr Paterson’s client $250 for costs with usual disbursements, in both cases against the second respondent.

Solicitors:
John Ropati, Auckland for Applicant
Ross & Whitney, Auckland for Respondents