Read v Almond

[2016] NZHC 297

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002991

CIV-2014-404-001278 [2015] NZHC 297

BETWEEN

BRUCE JAMES READ

First Plaintiff

AND

ETHNE GLADYS READ Second Plaintiff

AND

CHRISTOPHER JOHN READ Third Plaintiff

AND

JANFERIE MAEVE ALMOND Defendant

On the papers
Counsel:	J Airey/A Dullabh for the First Plaintiff N Woods/S Rhind for the Second and Third Plaintiff D Law for the Defendant
Judgment:	26 February 2016

JUDGMENT OF THOMAS J [APPLICATION FOR A STAY]

This judgment was delivered by me on 26 February 2016 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Rice Craig, Auckland.

Law & Associates, Manukau

READ & ORS v ALMOND [2015] NZHC 297 [26 February 2016]

Introduction

[1]      The defendant has applied for a stay of enforcement of my judgment dated

11 November 2015.1  The judgment ordered the sale of the disputed property, and division of the proceeds among the co-owners, under s 339 and 343 of the Property Law Act 2007. She says she has commenced proceedings in the Court of Appeal to appeal the substantive judgment.

[2]      However, it is not immediately clear whether the application is made under r

17.29 of the High Court Rules, which provides for a stay of enforcement generally, on the grounds that “a substantial miscarriage of justice would be likely to result if the judgment were enforced”, or under the rules relating to stays of proceeding pending appeal. Both rules are cited in the application.

[3]      Those rules are distinct.2   The power to stay execution of a judgment pending an appeal against it is exercised concurrently by the High Court and Court of Appeal under r 12 of the Court of Appeal (Civil) Rules 2005:3

… Rule 17.29 High Court Rules is clearly a separate and distinct rule from the power to stay execution of a judgment pending an appeal against it. Here, the defendants have appealed against the summary judgment in question to the Court of Appeal. The present application, however, says that it relies solely on r 17.29. That rule is concerned with the risk of substantial injustice resulting from the enforcement of the judgment not from the judgment itself and therefore on its face the appeal to the Court of Appeal is of little or no relevance to the present application.

[4]      I assume this application falls under r 12.4

Rule 12 of the Court of Appeal (Civil) Rules

[5]      The relevant rule provides:

12 Stay of proceedings and execution

1      Read v Almond [2015] NZHC 2797.

2      Andrew Beck McGechan on Procedure (online ed, looseleaf edition, Westlaw) at [HR17.29.01].

3      Palmerston North City Council v Birch [2012] NZHC 3248 at [17].

4      I note that although r 20.10 of the High Court Rules appears to cover stays pending appeal, r

20.1 provides that it covers only appeals to the High Court not from the High Court: see X v
Company B [2014] NZHC 2197 at [14].

(1) None of the matters referred to in subclause (2) operate as—

(a) a stay of a proceeding in which a decision was given; or

(b) a stay of execution of that decision. (2) The matters are—

(a) an application for leave to appeal; or

(b) the giving of that leave; or

(c) an appeal.

(3) Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on application,—

(a) order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or

(b) grant any interim relief.

(4) An order or a grant under subclause (3) may—

(a) relate to execution of the whole or part of the decision or to a particular form of execution:

(b) be subject to any conditions that the court appealed from or the

Court thinks fit, including conditions relating to security for costs.

(5) If the court appealed from refuses to make an order under subclause (3), the Court may, on application, make an order under that subclause.

(6) If the court appealed from makes an order under subclause (3), the Court may, on application, vary or rescind that order.

(7) The Court may, at any time, vary or rescind an order made by it under this rule.

[6]      The power under this rule is exercised concurrently by the Court of Appeal and High Court, although applications should be made in the first instance to the High Court in most cases.5 The assessment requires balancing the competing rights of the party who has the benefit of the High Court judgment, against the need to preserve the appellant’s position against the event of the appeal succeeding.6  The

factors to consider in evaluating an application under this rule include:7

5      Salem Ltd v Top End Homes Ltd (2005) 18 PRNZ 122 (CA).

6      Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87.

7      Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17, citing Dymocks Franchise

Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC).

(a)       Whether the appeal may be rendered nugatory by the lack of a stay; (b)        The bona fides of the applicant as to the prosecution of the appeal; (c)   Whether the successful party will be injuriously affected by the stay; (d)     The effect on third parties;

(e)       The novelty and importance of questions involved; (f) The public interest in the proceeding; and

(g)      The overall balance of convenience.

[7]      The  plaintiffs  have  responded  to  the  application.    They  note  that  the defendant has applied to the Court of Appeal for an extension of time for the appeal given the appeal was filed outside the 20 working day period (albeit only by one day).

[8]      The plaintiffs advise the Court that they have opposed the application for an extension which has been set down for an oral hearing in the Court of Appeal on

18 April 2016.

[9]      In  the  circumstances,  the  plaintiffs  accept  on  a  pragmatic  basis  that enforcement  of  the  judgment  should  be  stayed  on  an  interim  basis  until  the application for an extension has been determined by the Court of Appeal.  This is without prejudice to their position as to whether the stay should continue should the application for an extension be granted.  The plaintiffs state that not only do they wish to preserve the right to oppose any stay but, in any event, they may seek that any continuation of the stay should be on terms, including payment of expenses and/or rent.

[10]     In the circumstances, the application for a stay is granted until the outcome of the application for an extension is known. The parties can then revert to me once the outcome of that application is available.

[11]     Costs on the stay application are reserved.

Thomas J