PGG Wrightson Real Estate Limited v Routhan - [2022] NZHC 1025

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-77

[2022] NZHC 1025

BETWEEN
PGG WRIGHTSON REAL ESTATE LIMITED

Applicant

AND

PHILIP WILLIAM ROUTHAN AND JULIE VERONICA ROUTHAN (AS

TRUSTEES OF THE KANIERE FAMILY TRUST)

Respondents

Hearing: 6 May 2022

Appearances:

L J Taylor QC and J Eckford for Applicant (By VMR)

D R Kalderimis and O T H Neas for Respondents (By VMR)

Judgment:

13 May 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 13 May 2022 at 3.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

PGG WRIGHTSON REAL ESTATE LIMITED v ROUTHAN [2022] NZHC 1025 [13 May 2022]

[1] On 21 December 2021, I issued a judgment which found PGG Wrightson Real Estate Ltd (PGG) acted negligently and in breach of the Fair Trading Act 1986 in the course of transacting the sale of a West Coast dairy farm to Philip and Julie Routhan.1 I awarded damages of $1,697,600, and costs have since been agreed at $260,000. With interest, the judgment sum payable by PGG to the Routhans is almost $2,000,000.

[2] PGG has appealed that decision to the Court of Appeal, challenging both its liability to pay the judgment sum and quantum. It now applies for a stay of execution of the judgment, pending determination of that appeal.

PGG’s submissions

[3] While acknowledging the starting point is that the successful party is entitled to the fruits of its judgment, counsel for PGG, Mr Taylor QC, says the Court must balance this against the need to preserve the appellant’s position in the event of its appeal succeeding. Here, PGG says the Kaniere Family Trust, of which the respondents are trustees, has no assets. Furthermore, the respondents in their affidavits confirm they also own no assets of value. The judgment sum would be used to meet living expenses, debts relating to the proceeding and legal costs. There is no assurance that any of the sum they would have access to would be repaid in the event PGG is successful in reversing the judgment on appeal.

[4] On the other hand, PGG has demonstrated it can pay the judgment sum. Indeed, it has lodged the entire judgment sum, plus interest and costs, into an independent solicitor’s trust account, pending resolution of the appeal. PGG is also prosecuting the appeal with reasonable diligence. These are all factors which point in favour of the stay being granted.

[5] Mr Taylor emphasised that the usual position where there is a monetary judgment which is being appealed is that in the absence of a compelling reason for paying the judgment sum, and in the absence of security for its repayment, a stay should be granted.

1 Routhan v PGG Wrightson Real Estate Ltd [2021] NZHC 3585.

[6] In this case, Mr Taylor submits the reasons given for payment of part of the judgment sum are not compelling. While Mr Routhan says it is necessary to…

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.

Keep reading for free

Create a free CaseChat account to read PGG Wrightson Real Estate Limited v Routhan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 1025
Decision Date: 13 May 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, PGG Wrightson Real Estate Limited sought a stay of execution of a judgment sum of almost $2,000,000, awarded to Philip and Julie Routhan as trustees of the Kaniere Family Trust. The judgment had found PGG liable for negligent and unfair trading in the sale of a dairy farm to the Routhans. PGG appealed the decision, contending that the court should not grant the stay unless the Routhans provided security for repayment of the judgment sum. The Routhans opposed the stay, arguing that they needed access to part of the judgment sum to fund their appeal against both liability and the quantum of damages. The court had to decide whether to grant a stay of execution of the judgment sum pending the appeal, and if so, what conditions should apply to such a stay.

The court considered the factors relevant to the exercise of its discretion in granting a stay. While it is a general rule that the successful party is entitled to the fruits of their judgment, the court must also preserve the position of the appellant in case the appeal succeeds. Factors such as the risk of dissipation of the funds, the prospects of success of the appeal, and the effect on third parties, were considered. The court noted that PGG had already deposited the entire judgment sum, plus interest and costs, into a trust account and had demonstrated its ability to prosecute the appeal diligently. On the other hand, the Routhans had no assets and would likely spend any part of the judgment sum on legal fees and living expenses, making repayment to PGG difficult. The court held that while the Routhans should have access to sufficient funds to properly defend the appeal and pursue their cross-appeal, it was not appropriate to release funds for living costs or unexpected expenses when no details were given about them. The court granted the application for a stay but only in respect of a sum it considered reasonable to assist with legal fees on appeal.

Accordingly, the court ordered that all the judgment sum, plus interest and agreed costs, was stayed, save for the sum of $150,000 which was to be paid to the Routhans. The court did not order costs on this application to lie with any party.

Orders