Nicol v Ali - [2023] NZHC 1141

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-000555

[2023] NZHC 1141

BETWEEN
PERCIVAL ARTHUR BRIAN NICOL

Plaintiff

AND

BRETT ALI

Defendant

Hearing: 08 May 2023

Appearances:

NLK Stone for the Plaintiff Mr Ali (Defendant) in person

Judgment:

12 May 2023

JUDGMENT OF TAHANA J

(Application for stay and supplementary orders)

This judgment was delivered by me on 12 May 2023 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Snedden & Associates, Auckland Doug Cowan Barrister, Auckland Copy to: Defendant

NICOL v ALI (Application for stay and supplementary orders) [2023] NZHC 1141 [12 May 2023]

Introduction

[1]There are two outstanding applications:

(a)Mr Ali’s application for stay of execution of my judgment dated 20 September 20221 and my judgment dated 15 December 2022 regarding costs2 (the judgments); and

(b)Mr Nicol’s application for supplementary possession and sales orders.

[2] In my judgment dated 20 September 2022, I ordered that Mr Ali deliver up possession of the property at 12 Weymouth Road, Manurewa, Auckland (the Property) to Mr Nicol within 14 days from the date of that judgment. Mr Ali subsequently filed an appeal on 26 October 2022. On 20 February 2023, the Court of Appeal issued a notice certifying that Mr Ali’s appeal is deemed abandoned.

[3] Mr Nicol now seeks to enforce his right to possess the Property. The Property has motor vehicles and other chattels located on it. Mr Nicol seeks supplementary orders to enable those chattels to be seized and sold if they remain on the Property. I therefore need to consider each of the applications set out at [1] above.

Application for stay

[4] Rule 12(3) of the Court of Appeal (Civil) Rules 2005 provides that pending determination of an application to appeal, the court appealed from may, on an interlocutory application, order a stay of execution of the decision.

[5] The Court of Appeal’s notice of 20 February 2023 confirms that there is currently no appeal pending determination. The Court of Appeal recently upheld a High Court decision to decline to stay execution of a judgment noting that the appellant’s grounds for requesting a stay did not justify a stay of the judgment in circumstances where there had been no appeal from it.3 Here, while an appeal has been filed, it has now been abandoned.

1      Nicol v Ali [2022] NZHC 2414.
2      Nicol v Ali [2022] NZHC 3438.
3      Paraha v Dawson & Ors [2023] NZCA 148 at [13].

[6] In circumstances where the appeal has been abandoned, I am not satisfied that there would be a miscarriage of justice by declining Mr Ali’s application for stay of execution of the judgments. A stay without any certainty as to whether another appeal will be filed, and if so, when, is not in the interests of justice.

[7] Separate to the issue of an appeal, a liable party may apply to the court 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.

Continue reading Nicol v Ali

Details

AGLC: Nicol v Ali [2023] NZHC 1141
Case: [2023] NZHC 1141
Decision Date: 12 May 2023

CaseChat Overview and Summary

In the case of Nicol v Ali, the High Court of New Zealand addressed two applications related to the enforcement of previous judgments. The first application was by Brett Ali to stay the execution of the judgments that ordered him to deliver possession of the property at 12 Weymouth Road, Manurewa, Auckland, to Percival Nicol. The second application was by Mr Nicol for supplementary possession and sales orders to enable him to seize and sell chattels remaining on the property. The court had to determine whether to grant a stay of execution and whether to issue supplementary orders for the sale of chattels.

The court first considered the application for a stay of execution. It noted that the appeal against the original judgments had been abandoned, and the court found no substantial miscarriage of justice that would warrant a stay. The court emphasised that the appeal's abandonment meant there was no pending appeal to justify a stay, and the enforcement of the judgment was in the interests of justice. The court also considered whether Mr Ali's claims of overpayment and other issues could justify a stay but found no basis for such relief. The court therefore declined the application for a stay and ordered Mr Ali to vacate the property within 14 days.

Regarding the supplementary orders application, the court examined whether Mr Nicol was entitled to seize and sell chattels on the property to satisfy monies owed under the judgments. The court found that Mr Nicol was entitled to a sale order under the High Court Rules 2016, but it was not necessary to grant further orders as the rules already provided for the seizure and sale of chattels. The court relied on the Court of Appeal's decision in Cribb v FM Custodians Ltd, which supported the rights of a party in possession of land to remove chattels and recover storage costs. The court concluded that Mr Nicol could enforce his rights under the existing rules and did not need additional orders from the court.

The court declined both applications and ordered Mr Ali to vacate the property within 14 days from the date of the judgment. Costs were awarded to Mr Nicol on a 2B basis for the stay application, and costs were to lie where they fall for the supplementary orders application.

Orders