Michael Wilson & Partners Limited v Sinclair - [2016] NZHC 835

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-11444 [2016] NZHC 835

IN THE MATTER OF section 56 of the Judicature Act 1908

IN THE MATTER OF

enforcement of all of the judgments, orders and costs certificates of the Bahamian Supreme Court and Court of Appeal and of the Judicial Committee of the Privy Council, between the applicant and respondent named below

BETWEEN

MICHAEL WILSON & PARTNERS LIMITED

Applicant

AND

THOMAS IAN SINCLAIR Respondent

Hearing:
4 February 2016 (further memoranda filed on 9 and 10

February 2016)

Appearances:

K P Sullivan for the applicant
J M Morrison for the respondent

Judgment:

29 April 2016

JUDGMENT OF MALLON J

Table of Contents

Introduction ....................................................................................................................................... [1] The background ................................................................................................................................ [4] The Bahamas proceedings .............................................................................................................. [18] United Kingdom enforcement proceedings ................................................................................... [27] The New Zealand application......................................................................................................... [33]
Procedural background ................................................................................................................ [33] The Judicature Act 1908 ............................................................................................................... [38] Does the memorial meet the requirements of s 56? ...................................................................... [40] Has Mr Sinclair shown sufficient cause? ..................................................................................... [48]
Stay ................................................................................................................................................... [50] Result ................................................................................................................................................ [58]

MICHAEL WILSON & PARTNERS LIMITED v SINCLAIR [2016] NZHC 835 [29 April 2016]

Introduction

[1] The applicant (MWP) obtained judgments and orders in the Bahamas against the respondent (Mr Sinclair) for costs arising out of civil litigation Mr Sinclair brought against MWP in that jurisdiction (the Bahamian orders). He wishes to enforce the Bahamian orders in this jurisdiction, where Mr Sinclair has assets in the form of equity in a residential property in Wellington. Pursuant to the jurisdiction that applies to this situation, Mr Sinclair seeks to “show cause” as to why execution
of those judgments should not proceed and/or seeks a stay of execution.1

[2] Mr Sinclair says that he has a civil proceeding in the United Kingdom which, if successful, will enable him to be reimbursed for all the amounts he is required to pay under the Bahamian orders. As a result he has obtained a stay of the Bahamian orders in the United Kingdom. He says that this is where the litigation between the parties is centred and the position in the United Kingdom would be undermined unfairly if enforcement of the costs judgments is permitted in New Zealand. He says that if he meets the costs payable under the Bahamian orders, MWP will not be in a position to reimburse him if the United Kingdom proceeding is decided in his favour. In contrast, if the Bahamian orders are not presently enforced in this jurisdiction, MWP’s position is preserved by a charging order over Mr Sinclair’s Wellington property.

[3] MWP says there is no reason why the usual “pay as you go” approach to costs should not apply to Mr Sinclair in respect of the Bahamian orders. It says that if Mr Sinclair wished to obtain a stay of the Bahamian orders, he ought to have sought this in the Bahamian courts. The stay granted in the United Kingdom, which is being appealed by MWP, was based on Mr Sinclair’s purported claim for reimbursement against MWP…

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.

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Details

Case: [2016] NZHC 835
Decision Date: 29 April 2016

CaseChat Overview and Summary

Michael Wilson & Partners Limited (MWP) applied to enforce judgments and orders from the Bahamas and the United Kingdom against Thomas Ian Sinclair (Mr Sinclair). Mr Sinclair opposed the application and sought a stay of enforcement. The High Court was required to decide whether the memorial filed by MWP met the requirements of s 56 of the Judicature Act 1908, whether Mr Sinclair had shown sufficient cause to resist enforcement of the orders, and whether the Court should stay enforcement of the orders. The Court held that the memorial did not contain the particulars required by s 56. It did not specify the names and additions of the parties, the nature of the proceedings, or the date of the judgment. The Court also held that the memorial should not be filed until the amount of the costs ordered by the Privy Council had been fixed. The Court held that Mr Sinclair had shown sufficient cause to resist enforcement of the orders. The Court held that Mr Sinclair had an evidential foundation for his claim that he was entitled to be indemnified for the costs MWP sought to enforce as a result of an undertaking provided by MWP. It was a substantial injustice to Mr Sinclair if he was deprived of the stay ordered in the relevant jurisdiction by enforcement steps taken in this country. The Court held that it was appropriate to grant an interim stay of enforcement of the orders. The Court declined to order that execution issue on the judgments and orders listed in the memorial dated 7 July 2015. The Court held that if MWP wished to pursue execution of judgments or orders from the courts of the Bahamas and/or the United Kingdom an amended memorial would need to be filed. The Court stayed enforcement of the orders pending further order of the Court. The Court also held that the interim charging order in respect of Mr Sinclair’s Wellington property and the interim restraining order made by Brown J would continue in force.

Orders