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

1. 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.

2. 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

1. 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. 

2. 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

1. The application for a stay was made to this Court, which holds concurrent jurisdiction with the High Court in relation to stay applications of this kind.  However this Court has made it clear that an application ought to be made to the High Court in the first instance, rather than to this Court.[2]  That should have happened in this case, but given the time of year and the circumstances, this Court dealt with the application.

   [2]      Salem v Top End Homes Ltd (2005) 18 PRNZ 122 at [15].

2. In determining whether or not to grant a stay, the Court must weigh factors between the successful litigant’s rights to the fruits of a judgment and the need to preserve the position for an appellant in the event that an appeal is successful.  Factors to be taken into account include:[3]

   (a)       the strength of the appeal;

   (b)       whether the appeal may be rendered nugatory by the lack of a stay;

   (c)       the bona fides of the applicant as to the prosecution of the appeal;

   (d)      whether the successful party will be injuriously affected by the stay;

   (e)       the effect on third party;

   (f)       the novelty and importance of questions involved;

   (g)       the public interest in the proceedings; and

   (h)       the overall balance of convenience.

   [3]      Keung v GBR Trustees Ltd [2010] NZCA 396.

3. We will consider each of these factors in turn.

Strength of appeal

1. The High Court judgment is detailed and thorough and, on the information presently available to us, the appeal does not seem to be compelling.

Appeal nugatory?

1. We do not consider that the appeal would be rendered nugatory by the refusal of a stay.  Obviously the applicant will be deprived of possession pending the hearing of the appeal but counsel for the respondent, Mr Barker, indicated that the sale process for the property will involve some weeks.  Even if the property is sold, the applicant could pursue a claim for damages.

Bona fides

1. We accept the bona fides of the applicant in the prosecution of the appeal.

Successful party injuriously affected?

1. We accept Mr Barker’s submission that further delays in the sale of the property will be injurious to Mr Chapman and, therefore, the applicant’s former partner. 

Effect on third party

1. We accept the applicant’s submission that there will be some injurious effect on his daughter who will be staying with him over the Christmas break.

Novelty and importance

1. The issues dealt with in the High Court judgment are relatively straightforward factual issues and we do not see that there is any particular novelty or importance in them.

Public interest

1. This is a private dispute and we do not see that any public interest issues arise.

Balance of convenience

1. We are satisfied that the balance of convenience favours the respondent.  The applicant has had the opportunity to purchase the property but has not accepted the offer made to him to purchase it for a specific price and on specific terms and conditions.  This has left the respondent with the obligation to sell the property to best advantage, and the order for vacant possession allows that sale process to be undertaken.  We see the prejudice arising to the applicant as substantially of his own making. 

2. The applicant does not currently have access to his possessions, which were removed from the property.  Mr Barker told us they are in storage and the applicant will be given immediate access to them on request.

Result

1. We decline to grant the stay or interim relief requested by the applicant.

2. We ask the Registrar to liaise with the applicant and the respondent’s solicitors to set a fixture for the hearing of the appeal, if the applicant wishes to proceed with it.

Solicitors:
Buddle Findlay, Wellington for Respondent