Rabson v Chapman - [2012] NZCA 621

IN THE COURT OF APPEAL OF NEW ZEALAND

CA855/2012
[2012] NZCA 621

BETWEEN MALCOLM RABSON
Applicant

AND WAYNE SEYMOUR CHAPMAN
Respondent

Hearing: 21 December 2012

Court: O'Regan P, Harrison and Stevens JJ

Counsel: Applicant in person
S Barker for Respondent

Judgment: 21 December 2012 at 12 noon

JUDGMENT OF THE COURT

The application for a stay or interim relief is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

On 10 December 2012, Kos J issued a judgment in which he ordered the applicant, Mr Rabson, to provide vacant possession of a property in Paraparaumu to the respondent, Mr Chapman.[1] The respondent is the registered proprietor of the property in his capacity as trustee of the Gallagher Rabson Famly Trust. The order required the applicant to provide vacant possession on the expiration of eight days after service of the sealed order of the High Court.
[1] Chapman v Rabson [2012] NZHC 3322.
On 18 December 2012, the applicant filed an appeal against the High Court decision and an application for a stay. This was the seventh of the eight days referred to in the High Court order. The panel convened to hear the application urgently and a hearing took place by telephone earlier today. It transpires that the order was executed yesterday and the applicant was removed from the property and has had a trespass notice served on him. The application is now therefore an application for interim relief restoring to the applicant possession of the property and a stay on any further action enforcing the order.

High Court judgment

The background to the case is set out in the High Court judgment and we will not repeat it here. In the High Court the applicant argued that he had not been served with the application for vacant possession, but the Judge found against him on that. The applicant also argued that he had a lawful right to occupy the property. The Judge found that the applicant had been entitled to occupy the property under a licence granted by the previous trustees of the Gallagher Rabson Family Trust, but that that licence had been lawfully revoked. The applicant argued that he had a contractual entitlement to possession because under the terms of a judgment of this Court in relation to relationship property proceedings, he had the right to purchase the property on specified terms.
The Judge found that an offer had been made by the respondent to sell the property to the applicant. The applicant had said that he accepted the offer but not on the terms offered, and so no contract for sale had been effected. Under the terms of this Court’s orders, if no sale was effected to the applicant then the respondent was required to sell the property to best advantage, and the respondent sought the order for vacant possession so that such a sale could be undertaken.

Legal framework

The application for a stay was made to this Court, which holds concurrent jurisdiction…

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 Rabson v Chapman

Details

AGLC: Rabson v Chapman [2012] NZCA 621
Case: [2012] NZCA 621
Decision Date: 21 December 2012

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Malcolm Rabson appealed a High Court judgment which ordered him to vacate a property in Paraparaumu. Wayne Chapman, the registered proprietor of the property, sought the order to vacate the property to allow for a sale to best advantage, as stipulated in a previous judgment. Rabson argued he had a contractual right to purchase the property and that he was not lawfully served with Chapman's application for vacant possession. The Court of Appeal dismissed Rabson's application for a stay or interim relief.

The central legal issues before the Court of Appeal were whether the appeal had sufficient merit to warrant a stay of the High Court order and whether the balance of convenience favoured Rabson or Chapman. The Court considered various factors, including the strength of the appeal, whether the appeal would be rendered nugatory without a stay, the bona fides of Rabson, and the potential injury to Chapman and Rabson's daughter if the stay was granted. The Court concluded that the appeal did not appear compelling, the appeal would not be rendered nugatory, and the balance of convenience favoured Chapman.

The Court of Appeal found that the High Court judgment was thorough, and the appeal did not seem compelling. The Court also found that the appeal would not be rendered nugatory by the refusal of a stay, as Rabson could still pursue a claim for damages even if the property was sold. The Court accepted Rabson's bona fides in prosecuting the appeal and that his daughter would be adversely affected if the stay was granted. However, the Court found that further delays in the sale of the property would be injurious to Chapman and his former partner. The Court found that the issues in the High Court judgment were relatively straightforward and did not involve any particular novelty or importance. The Court also found that the dispute was a private matter and did not involve any public interest issues. Finally, the Court found that the balance of convenience favoured Chapman, as Rabson had an opportunity to purchase the property but did not accept the offer made to him.

The Court of Appeal dismissed Rabson's application for a stay or interim relief. The Court requested the Registrar to liaise with Rabson and Chapman's solicitors to set a fixture for the hearing of the appeal if Rabson wished to proceed with it.

Orders