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 enforcement against a judgment on the ground that a substantial miscarriage of justice would be likely to result if the judgment was enforced, and the court may give relief on just terms.4

[8]        Rule 17.29 of the High Court Rules 2016 (HCR) is separate and distinct from r 12 of the Court of Appeal (Civil) Rules 2005. The difference between r 12 of the Court of Appeal (Civil) Rules 2005 and r 17.29 of the HCR is that an appeal is not a prerequisite to a stay under r 17.29. Rule 17.29 is concerned with the risk of substantial injustice resulting from the enforcement of the judgment, not from the judgment itself.5

[9]        Mr Ali submits that Mr Nicol did not provide the Court with all relevant information and that Mr Ali has in fact overpaid Mr Nicol under the terms of the lease. Mr Ali maintains that Mr Nicol is not entitled to possession of the Property. The concerns raised by Mr Ali are matters for an appeal. In the absence of an appeal, I am not satisfied that there will be a substantial miscarriage of justice.

[10]      In these circumstances, it would be unjust if Mr Nicol is unable to enforce his rights under the judgments. I therefore decline Mr Ali’s application.

[11]      Mr Ali represented himself and it is important that he understands the effect of this judgment. Mr Nicol will now be entitled to possession of the Property. Mr Ali is required to vacate the Property and remove his chattels. It is in Mr Ali’s interests to immediately take steps to do this. It is also reasonable that Mr Ali be given 14 days from the date of this judgment to make the necessary arrangements to enable vacant possession to be provided to Mr Nicol.

4      High Court Rules 2016, r 17.29.

5      Palmerston North City Council v Birch [2012] NZHC 3248.

[12]      This is consistent with my  20  September  2022  judgment  which  allowed 14 days from the date of that judgment for Mr Ali to deliver up possession of the Property to Mr Nicol.6

Application for supplementary orders

[13]      Mr Nicol’s application seeks supplementary orders to enable him to seize all of the chattels from the Property, to sell those chattels, and to retain funds from the proceeds of sale to satisfy monies owed to Mr Nicol under the judgments.

[14]      Rule 17.63 of the HCR provides that an entitled party may issue a sale order at any time after judgment for a sum of money is sealed. A sale order authorises and requires an enforcing officer to seize all the liable party’s personal property except:7

(a)necessary tools of trade to a value not exceeding $5,000; and

(b)necessary household furniture and effects to a value not exceeding

$10,000 (necessary household furniture and effects includes the clothes of the liable party and his or her family).

[15]      Mr Nicol is entitled to a sale order of the chattels on the terms set out in r 17.62 and the leave of the Court is not required. The additional orders requesting seizure and sale of chattels that fall within the above exception raises the issue of whether the Court has jurisdiction to make such orders given the clear terms of r 17.62.

[16]      Counsel for Mr Nicol argues that the orders sought are supplementary to my previous judgment and relies on Wilson v Selwyn District Council.8 In that decision, the Court held that making an order of costs in relation to a judgment that was silent on that issue was supplemental and therefore the Court had jurisdiction to make the costs order. My 20 September 2022 judgment provided for a possession order of the Property and damages for non-payment of rates. The orders Mr Nicol is seeking relate

6      Nicol v Ali [2022] NZHC 2414.

7      High Court Rules 2016, r 17.62.

8      Wilson v Selwyn District Council, HC Christchurch CIV-2004-485-720, 15 December 2004.

to enforcement of my judgment and are not of the same “supplementary” nature as described in Wilson v Selwyn District Council.

[17]      I need to be satisfied that the enforcement provisions of the HCR authorise the Court to make orders that are contrary to the terms of r 17.62. I do not consider that they do. Mr Nicol’s concerns are more appropriately addressed by considering the rights of a party entitled to vacant possession of land.

[18]      In Cribb v FM Custodians Ltd the Court of Appeal considered whether a mortgagee entitled to possession of a property was entitled to remove the chattels that remained on the property and recover charges for storage of those chattels.9 The Court of Appeal noted that:10

It is plain that to place or leave a chattel on the land of another who has a right to possession without consent is trespass. A party lawfully in possession of land is entitled to enjoy that land free from trespassing chattels.

[19]      The Court of Appeal then went on to find that the mortgagee would be an involuntary bailee of the chattels in circumstances where fair notice had been given and the mortgagee was entitled to remove and store the chattels and recover their costs of storage.11

[20]      In Cribb, the Court of Appeal also noted the English High Court decision in Campbell v Redstone Mortgages Ltd12 where it was held that the mortgagor had acted unreasonably in not removing the chattels, and that the mortgagee was entirely justified in commencing to clear the property of the chattels and dispose of them.13

[21]      Mr Nicol is entitled to issue a sales order under r 17.63 in relation to the chattels. Mr Nicol has rights by reason of the possession order for the Property, and the decision in Cribb provides helpful guidance as to the rights of an involuntary bailee should the chattels that fall within the exception under r 17.62 remain on the Property

9      Cribb v FM Custodians Ltd [2018] NZCA 183.

10 At [24].

11     At [27] and [32].

12     Campbell v Redstone Mortgages Ltd [2014] EWHC 3081 (Ch).

13     Cribb v FM Custodians Ltd [2018] NZCA 183 at [29] citing Campbell v Redstone Mortgages Ltd

[2014] EWHC 3081 (Ch) at [122].

when the possession order is enforced. I do not consider that further orders of the Court are necessary.

Result

[22]      The application to stay execution of the judgments is declined. Mr Ali has   14 days from the date of this judgment to comply with the orders made in my judgment dated 20 September 2022.

[23]The application for supplementary orders is declined.

Costs

[24]      Mr Nicol has been successful in opposing the application for stay of execution of my judgments and is entitled to costs on a 2B basis in relation to that application.

[25]      Costs are to lie where they fall in relation to Mr Nicol’s application for supplementary orders. While I did not grant the orders sought, it was not unreasonable for Mr Nicol to seek further orders given the circumstances of the Property which has several significant chattels located on it and there is uncertainty as to whether those chattels will be removed.

Tahana J