Flewitt v Moses HC Auckland CIV 2008-404-005002

[2008] NZHC 2485

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-005002

BETWEEN  DAVID PHILIP FLEWITT Plaintiff

ANDMAHMUDA MOSES Defendant

Hearing:         7 August 2008 (On Papers) Judgment: 7 August 2008

JUDGMENT OF FOGARTY J

[1]      Mr Flewitt applies ex-parte for a stay of execution of an order made by Judge Joyce QC in the District Court on 5 August 2008.   That judgment removed a temporary stay of execution of a possession order the defendant, as landlady, had obtained from the Tenancy Tribunal on 13 June.  The Tenancy Tribunal had granted a stay of execution on 25 July but on condition that the appellant paid $2,400 in clear funds together with a further $400 payment on 8 August, failing which the order for possession would be immediately executed.

[2]      I do not have the judgment of Judge Joyce in front of me.  This application for stay of that judgment was lodged on 6 August but not presented to me until today, 7 August.  In the meantime I understand the plaintiff has in fact been evicted. His clothes and other belongings have been removed from the house and the locks changed.

[3]      The  plaintiff  has  a  fixture  pending  before  the  Tenancy  Tribunal  on

15 August.  The issue at that hearing is whether or not a second tenancy agreement was entered into on 20 June 2008 pursuant to which he is entitled to remain in

FLEWITT V  MOSES HC AK CIV 2008-404-005002  7 August 2008

occupancy of the property.   The issue between the parties is whether or not that agreement is a forgery.

[4]      Now that the landlady is in possession of the property, the effect of any interim order would be to cast upon her a positive obligation to vacate the property and allow the plaintiff to resume possession.  The law leans against making interim positive orders known to the law as mandatory orders.

[5]      The options open to this Court at this stage are to:

1.        Decline this application; or

2.Set this application down for a hearing after appropriate notice is given to the landlady.

[6]      There is no basis for making orders in these circumstances without hearing the landlady.  However, I am not going to decline this applicant.  It will be called again before Justice Lang on Tuesday next, 12 August, at 9 am.

[7]      The plaintiff can elect to proceed with this matter by serving on Mrs Moses a copy of the papers that have been filed in the High Court together with advice that the case will be called again in the appeals case management conference list.  The appellant will have another opportunity on that day to persuade the Court for a mandatory order, but in a situation where he will have to have proved service on the landlady defendant and she will thereby have an opportunity to oppose.

[8]      I wish to make it clear that Mr Flewitt is not obliged to take this option, and if he does so and fails he is at risk of an order for costs in favour of Mrs Moses. Whether or not the proceedings are served, they are to be called on 12 August.