Marina View Conference Management Centre Ltd v JB Ventures Limited

[2012] NZHC 51

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV 2012-416-12 [2012] NZHC 51

BETWEEN  MARINA VIEW CONFERENCE MANAGEMENT CENTRE LTD First Appellant/Applicant

ANDGARY JOHN MCNABB Second Appellant/Applicant

ANDPORTSIDE APARTMENTS LIMITED Third Appellant/Applicant

ANDJB VENTURES LIMITED Respondent

Hearing:         3 February 2012 (by telephone) Counsel:        R Pidgeon for Appellants

D J Sharp for Respondent

Judgment:      3 February 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Thorne Thorne White & Clarke-Walker, PO Box 140, Shortland Street, Auckland

Burnard Bull & Co, PO Box 946, Gisborne

MARINA VIEW CONFERENCE MANAGEMENT CENTRE LTD V JB VENTURES LIMITED HC GIS CIV

2012-416-12 3 February 2012

Introduction

[1]      Marina View Conference Management Centre Ltd, Mr McNabb and Portside Apartments Ltd appeal against a judgment given by Judge Spiller in the District Court at Gisborne on 16 November 2011.

[2]      The Judge dismissed an application to set aside a default judgment that had been entered in favour of JB Ventures Ltd against the three appellants on 18 July

2011.  The amount in which judgment was entered was a total sum of $62,473.16.  It related to the failure of the three appellants to pay rent and outgoings on a lease together with interest and costs.

[3]      In addition, the Judge was asked to stay proceedings pending the hearing of a counterclaim.   Although not expressly stated in the judgment, I infer that that application was also dismissed.

[4]      I heard from counsel today by telephone on two issues.  The first concerned case management directions for the appeal.  The second involved an application for stay of execution of the judgment pending appeal.

Stay pending appeal

[5]      I deal first with the application for stay.  My inclination was to require the judgment sum to be paid into the trust account of a firm of solicitors pending determination of the appeal.  That would ensure that if the appeal were unsuccessful the  successful  plaintiff  would  receive  its  money  promptly  thereafter.     The outstanding rent has not been paid since January 2011, even though judgment was not obtained until July that year.

[6]      Unsurprisingly, Mr Pidgeon, for the appellants, submitted that his clients took the view that they ought to get the benefit of a stay pending appeal.  However, some concerns have been raised about the position of other creditors.  Generally, I would take the view that, in a case like this, it may be better for enforcement proceedings to

be  commenced  in  the  meantime.    However,  in  this  case,  I  prefer  to  give  an opportunity to the appellants to pay the judgment sum into a trust account and to make an order for stay in the meantime.  That protects the interests of the appellants and may affect impressions of impecuniosity on the part of the appellants.

Appeal directions

[7]      In relation to the appeal, a prompt hearing has been secured.  The appeal will be heard in Napier at 10am on 5 March 2012.

[8]      The following directions are made:

(a)      Security for costs, for a half day hearing, shall be paid to the Registrar of the High Court at Gisborne on or before 10 February 2012.

(b)      On or before 23 February 2012, the appellants shall file and serve

(i)       submissions in support of the appeal, (ii)         a paginated case book,

(iii)an application for leave to adduce further evidence in response to that filed by the plaintiff in the District Court in relation to counterclaim issues and

(iv)     the evidence that is sought to be adduced.

(c)      On or before 1 March 2012, submissions shall be filed and served on behalf of the respondent, together with any notice of opposition to the application to adduce further evidence.

(d)      A common bundle of authorities shall be filed on or before 2 March

2012.  Counsel will no doubt co-operate in ensuring that is ready at that time.

Result – stay pending appeal

[9]      So far as the stay is concerned, I make an order staying enforcement of the judgment  pending  determination  of  the  appeal  on  condition  that  the  sum  of

$62,473.16 is paid into the trust account of Pidgeon Law Auckland on or before 16

February 2012 to abide the outcome of the appeal.  A memorandum shall be filed and served by Mr Pidgeon, for the appellants, by 4pm on 16 February 2012, confirming whether or not the amount has been deposited.  If not, the stay will be lifted automatically.

Costs

[10]     All questions of costs are reserved to be determined by the Judge who hears the appeal.

P R Heath J