Noe v Ratzapper Australasia Limited - [2019] NZHC 2962

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001323

[2019] NZHC 2962

BETWEEN
ROBERT NOE

Applicant

AND

RATZAPPER AUSTRALASIA LIMITED

Respondent

Hearing: 12 November 2019

Appearances:

D J G Cox for Applicant

W McCartney and N Eilenberg for Respondent

Judgment:

12 November 2019

ORAL JUDGMENT OF WYLIE J

Solicitors/counsel:
Truman Wee & Associates, Hamilton/W McCartney, Auckland Rennie Cox, Auckland

NOE v RATZAPPER AUSTRALASIA LTD [2019] NZHC 2962 [12 November 2019]

Introduction

[1] The applicant, Mr Noe, has filed an application seeking to stay the enforcement of a judgment given against him in an arbitral award issued in June 2017 by the Hon Rodney Hansen CNZM QC. The award was issued after Mr Noe was debarred from defending a claim made against him by the respondent, Ratzapper Australasia Limited (Ratzapper). Mr Noe was debarred because of his persistent failure over a prolonged period to comply with discovery orders made by the arbitrator.

[2] Mr Noe did not meet the award, and Ratzapper sought to enforce the same. Mr Noe applied to this Court for an order that it would be contrary to the public policy of New Zealand to enforce the award relying on art 36(3) of sch 1 to the Arbitration Act 1996. Muir J found in November 2017 that there was no breach of the rules of natural justice and that it would not be contrary to public policy if Ratzapper were to enforce the award in its favour.1

[3] Mr Noe appealed to the Court of Appeal. It issued its judgment in December 2018 dismissing the appeal.2

[4] Mr Noe then sought leave to appeal to the Supreme Court. It declined leave to appeal in March 2019.3

[5] While the appeals were pending, Mr Noe had the benefit of orders staying the enforcement of the award. Now that all appeals have been exhausted, Ratzapper again seeks to proceed. It has obtained both a charging order over and a sale order for a farm property owned by Mr Noe near Hot Water Beach on the Coromandel Peninsula. It seeks to sell the farm property through the Sheriff.

[6] The order for the sale of the farm property first issued in August 2018. As noted, the sale was stayed pending the hearing of the appeals. The Sheriff has since put Mr Noe on notice of the prospect of sale. This occurred in March 2019 after the Supreme Court issued its judgment declining leave. Mr Noe then made a settlement

1      Ratzapper Australasia Ltd v Noe [2017] NZHC 2931, [2018] NZAR 1.
2      Noe v Ratzapper Australasia Ltd [2018] NZCA 597.
3      Noe v Ratzapper Australasia Ltd [2019] NZSC 33.

offer to Ratzapper. That offer was declined in May 2019. Mr Noe and his advisors have been engaging in correspondence with the Sheriff about the pending sale since May 2019. Notice of the sale was sent by the Sheriff to Mr Noe on 16 October 2019. It advised…

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: [2019] NZHC 2962
Decision Date: 12 November 2019

CaseChat Overview and Summary

Wylie J declined the application for a stay of enforcement by Mr Noe, who sought to halt the enforcement of a judgment awarded in favour of Ratzapper Australasia Limited. The judgment was made in an arbitral award issued in June 2017, following Mr Noe's persistent failure to comply with discovery orders. Mr Noe argued that it would be contrary to New Zealand public policy to enforce the award, but this argument was rejected by Muir J in 2017 and subsequently by the Court of Appeal and the Supreme Court. With the appeals concluded, Ratzapper sought to enforce the judgment through the sale of a farm property owned by Mr Noe. The court considered the principles governing the grant of a stay of enforcement, including the need for Mr Noe to demonstrate a substantial likelihood of a miscarriage of justice if the judgment were enforced. Mr Noe argued that he needed more time to subdivide and sell a section of the farm property to satisfy the judgment debt, and that alleged defamatory comments made by Mr Hinds, the principal behind Ratzapper, had hindered his ability to do so. However, the court found that Mr Noe had had ample time to progress the subdivision and that there was no evidence linking the alleged defamations to his failure to sell the property. The court concluded that there was no substantial likelihood of a miscarriage of justice if the judgment were enforced and declined the application for a stay. The court also ordered costs against Mr Noe in favour of Ratzapper.

The court found that Mr Noe had had sufficient time to complete the subdivision and that there was no evidence linking the alleged defamations to his failure to sell the property. The court concluded that there was no substantial likelihood of a miscarriage of justice if the judgment were enforced and declined the application for a stay of enforcement. The court ordered costs against Mr Noe in favour of Ratzapper on a 2B basis, together with any reasonable disbursements.

Orders