Meads v Muldrew
[2021] NZHC 2691
•8 October 2021
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1666
[2021] NZHC 2691
IN THE MATTER of an appeal BETWEEN
SCOTT BRADLEY MEADS
Appellant
AND
KATIE SARAH MULDREW
Respondent
Hearing: On the papers Appearances:
Appellant in person
AHH Choi for the Respondent
Judgment:
8 October 2021
JUDGMENT OF GAULT J
This judgment was delivered by me on 8 October 2021 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors / Counsel:
The Appellant
Ms C E Wiseman and Mr AHH Choi, Barristers, Auckland Mr B Sheehan (the respondent’s instructing solicitor)
MEADS v MULDREW [2021] NZHC 2691 [8 October 2021]
[1] In this appeal against a costs judgment of Judge R von Keisenberg in the Family Court at Auckland dated 20 July 2021,1 Mr Meads seeks a stay of the costs order pending appeal.
Background
[2]The parties were in a de facto relationship for a little over four years.
[3] Following their relationship, a dispute arose under the Property (Relationships) Act 1976.
[4] On 19 February 2021 Judge von Keisenberg issued a judgment in favour of Ms Muldrew’s application, awarding her a half interest in a property, payment from Mr Meads for occupation rent from the date of separation and compensation.2 In view of Ms Muldrew’s success in the proceeding, the Judge indicated that she intended to award Ms Muldrew costs.
[5] Following submissions, on 20 July 2021 the Judge awarded Ms Muldrew costs of $45,000 (including disbursements) plus $1,319 for costs for the transfer of proceedings from Wellington to Auckland. The Judge also ordered Ms Muldrew to pay costs of $1,000 to a trustee company of which Mr Meads was the sole director and shareholder. Thus, the total costs payable by Mr Meads was reduced by $1,000 to
$45,319.
Stay pending appeal – principles
[6]Rule 20.10 of the High Court Rules 2016 provides that:
1 Muldrew v Meads [2021] NZFC 7037.
2 Muldrew v Meads [2021] NZFC 1096.
20.10 Stay of proceedings
(1)An appeal does not operate as a stay—
(a)of the proceedings appealed against; or
(b)of enforcement of any judgment or order appealed against.
(2)Despite subclause (1), the decision-maker or the court may, on application, do any 1 or more of the following pending determination of an appeal:
(a)order a stay of proceedings in relation to the decision appealed against:
(b)order a stay of enforcement of any judgment or order appealed against:
(c)grant any interim relief.
(3)An order made or relief granted under subclause (2) may—
(a)relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:
(b)be subject to any conditions for the giving of security the decision-maker or the court thinks just.
[7] In the absence of an order from the Court, the successful party in the Court appealed from is entitled to enforce the judgment given. The general rule is that a party is entitled to the benefit of a judgment in its favour. In determining whether or not to grant a stay, the Court must weigh the 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.3 Put another way, the object, where it can be fairly achieved, is to arrange matters so that, when the appeal comes to be heard, the appellate court may be able to do justice between the parties, whatever the outcome of the appeal may be.4 Relevant factors include whether appeal rights would be rendered nugatory if the stay were not granted, the bona fides of the applicant, whether the respondent or third parties will be injuriously affected, the novelty and importance of
3 Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87; and Keung v GBR Investment Ltd
[2010] NZCA 396 at [11].
4 Minnesota Mining & Manufacturing Co v Johnson & Johnson Ltd [1976] FSR 139; [1976] RPC 671 (CA) at 144-145 and 676, as cited in New Zealand Insulators Ltd v ABB Ltd (2006) 18 PRNZ 459 (CA) at [13].
the question, the public interest in the proceeding, the apparent strength of the appeal and the overall balance of convenience.5
Submissions
[8] The parties agreed to determination of the stay application on the papers, with submissions timetabled.6
[9] Mr Meads submits that if the costs are enforced (with s 42 notices lodged against relevant property),7 it would cause him undue financial distress. The notice of claim lodged against the only property owned by him causes difficulty in terms of borrowing and prevents him from selling the property.
[10] Mr Meads also submits that if the costs are paid, it is unclear whether they could be repaid if the appeal is successful. He also notes that even if he is successful on appeal, the costs repayable would be less than the amount of compensation owed under the substantive Family Court judgment.
[11] He submits that it would be more appropriate for a payment plan to be agreed and/or directed. He seeks orders directing a payment plan not exceeding $3,000 per month, removing the s 42 notices and leave to seek further directions to offset any amount that may be awarded to the appellant in this appeal against the monies owed under the substantive judgment.
[12] Mr Choi, for Ms Muldrew, submits that since Mr Meads is no longer seeking a stay, the application can simply be dismissed as this Court has no jurisdiction on this application to make the new directions sought by Mr Meads.
5 Keung at [11].
6 Minute dated 7 September 2021.
7 Notices of claim under s 42 of the Property (Relationships) Act 1976.
Discussion
[13] I do not consider there should be a stay of the Family Court’s costs judgment pending appeal, for the following reasons:
(a)First, Mr Meads’ memorandum indicates he no longer seeks a stay but rather seeks other orders pending appeal.
(b)Secondly, there is no evidence that the appeal would be rendered nugatory unless a stay were granted. That is both because there is no suggestion the appeal could not proceed, and because Mr Meads’ suggestion that it is not clear whether the costs could be repaid is answered by the fact that the costs award is more than offset by amounts already owing to Ms Muldrew pursuant to the substantive Family Court judgment and costs awards payable in the previous High Court appeal proceeding.
(c)Finally, given the totality of the outstanding Court judgments and what appears to be an unremarkable costs order for less than 2B scale costs, the balance weighs clearly against a stay.
[14] In relation to the alternative orders sought in Mr Meads’ memorandum, I do not consider they are appropriate in the circumstances. While r 20.10 confers on the Court a power to grant interim relief as well as a stay, here no such relief was sought in Mr Meads’ interlocutory application for a stay. Insofar as a payment plan is merely a partial stay, the reasons for declining a stay equally apply. Otherwise, there is no basis for a Court ordered compromise. Nor is it necessary or appropriate by way of interim relief to require the removal of a s 42 notice of claim which the Family Court has ordered is to be removed upon settlement; that is, on satisfaction of the other orders of the Family Court.
Result
[15]Mr Meads’ application for a stay and other orders is dismissed.
[16] Since Ms Muldrew intended to abide the Court’s decision on stay, no costs issue would have arisen except that Mr Meads sought new alternative orders in his memorandum, which called for a brief response. If costs are sought and cannot be agreed, I will receive costs memoranda (not exceeding two pages) within 15 working days and determine costs on the papers.
Gault J
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