Kirby v Fisher - [2012] NZHC 557

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-1019 [2012] NZHC 557

IN THE MATTER OF the Family Protection Act 1955

AND

IN THE MATTER OF the estate of Irma Murray

BETWEEN MELISSA TANIA KIRBY First applicant

ANDNATHAN HAMMOND MURRAY Second applicant

ANDJOHN LESLIE BIRCH Third applicant

ANDCARMEL MIRINGA FISHER AND HUGH GLADSTONE FISHER Respondents

Hearing: 20 March 2012

Appearances: G Mason for the respondents
G Jenkin for Carmel Miringa Fisher, Peter Hammond Wakem and
Melanie Wakem as beneficiaries of the estate of Irma Murray
J Reardon for the second applicant
Appearances for the first and third applicants excused

Judgment: 28 March 2012

JUDGMENT OF CLIFFORD J

Introduction

[1] This is an application for a stay of enforcement of judgment under r 12 of the

Court of Appeal (Civil) Rules 2005 and r 20.10 of the High Court Rules.

KIRBY v FISHER HC WN CIV-2010-485-1019 [28 March 2012]

Facts

[2] In my substantive judgment in this matter of 22 August 2011,[1] and in my costs judgment of 22 December 2011,[2] I:
[1] Kirby v Sims and Fisher HC Wellington CIV-2010-485-794, 22 August 2011.
[2] Kirby v Sims and Fisher HC Wellington CIV-2010-485-794, 22 December 2011.

(a) made Family Protection Act awards in favour of the first, second and

third applicants against the estate of Irma Murray (“the Estate”); and

(b)made orders for costs in favour of the first, second and third applicants against the beneficiaries of Irma Murray’s estate who had defended those claims, namely Carmel Miringa Fisher, Peter Hammond Wakem and Melanie Wakem (“the Will Beneficiaries”),

respectively.

[3] The Will Beneficiaries are appealing both of those judgments to the Court of

Appeal. Cross-appeals have also been filed.

[4] Issues of enforcement have arisen. The first and third applicants have resolved those issues on terms which provide for the Estate to make an interim distribution to each of them of $250,000 and for them to take no further enforcement action against either of the Estate or the Will Beneficiaries.

[5] Issues of enforcement remain outstanding as between the second applicant and the Estate and the Will Beneficiaries. Charging orders were registered and first steps taken to obtain a sale order on Mr Murray’s behalf. On 28 and 29 February this year the respondent executors for the Estate (“the Executors”) and the Will Beneficiaries applied for orders staying Mr Murray’s enforcement actions. They did so after Mr Murray had rejected the offer which the first and third applicants had accepted. On 29 February 2012 I granted the Estate and the Will Beneficiaries
interim stays pending the hearing of these applications.

[6] On 6 March, Mr Murray offered to withdraw his enforcement proceedings if the Estate was to pay him $300,000 (I awarded him a specific bequest of $600,000) and the Will Beneficiaries were to pay the full amount of costs awarded against them, namely $70,000. That remained Mr Murray’s position at the hearing of these applications for stay.

Law

[7] The general principles applicable to applications for a stay of…

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.

Keep reading for free

Create a free CaseChat account to read Kirby v Fisher and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZHC 557
Decision Date: 28 March 2012

CaseChat Overview and Summary

Melissa Tania Kirby, Nathan Hammond Murray, and John Leslie Birch have applied for a stay of enforcement of judgment against Carmel Miringa Fisher, Hugh Gladstone Fisher, and the estate of Irma Murray. The application concerns Family Protection Act awards made in favour of the applicants and costs orders against the respondents. The Will Beneficiaries are appealing both judgments to the Court of Appeal. The applicants and respondents have filed cross-appeals. Enforcement issues have arisen, with the first and third applicants resolving their issues with an interim distribution from the Estate. The second applicant, Nathan Hammond Murray, seeks further enforcement against the Estate and the Will Beneficiaries. The respondents applied for a stay of enforcement of judgment, which the Court granted on an interim basis. Murray subsequently offered to withdraw his enforcement proceedings if the Estate paid him $300,000 and the Will Beneficiaries paid his awarded costs of $70,000.

The Court considered the general principles applicable to applications for a stay of enforcement of judgment. It noted that the "rendered nugatory" principle is not determinative, and that the Court must weigh relevant factors in the balance between the successful litigant's rights to the fruits of a judgment and the need to preserve the position in case the appeal is successful. The Court considered whether the appeal would be rendered nugatory by the lack of a stay, the bona fides of the applicants, whether the successful party would be injuriously affected by the stay, the effect on third parties, the novelty and importance of questions involved, the public interest in the proceeding, and the overall balance of convenience. The Court found that the appeal would not be rendered nugatory by the lack of a stay, and that the balance of convenience may well favour a stay being granted.

The Court granted stays on the condition that the Estate pay Murray an interim sum of $250,000. The Court considered this outcome to be fair to all parties involved, and noted that it would enable Murray to meet his legal bills with an amount left over as well. The Court also noted that the stay granted to the Will Beneficiaries was not inconsistent with the costs order it made against them personally, as they may not always be able to meet the award of costs out of their share of the Estate. Costs were reserved for final determination.

In conclusion, the Court granted stays of enforcement of judgment in favour of the respondents on the condition that the Estate pay Murray an interim sum of $250,000. The Court found that the balance of convenience favoured a stay being granted, and that this outcome was fair to all parties involved. The Court also noted that the stay granted to the Will Beneficiaries was not inconsistent with the costs order it made against them personally. Costs were reserved for final determination.

Orders