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…

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 Read v Almond

Details

AGLC: Read v Almond [2016] NZHC 297
Case: [2016] NZHC 297
Decision Date: 26 February 2016

CaseChat Overview and Summary

The case of Read v Almond involved an application for a stay of enforcement of a High Court judgment dated 11 November 2015, which had ordered the sale of a disputed property and the division of the proceeds among the co-owners. The defendant, Janferie Maeve Almond, applied for the stay, arguing that she had commenced proceedings in the Court of Appeal to appeal the substantive judgment. The court had to decide whether the application fell under Rule 17.29 of the High Court Rules or under the rules relating to stays of proceedings pending appeal.

The court considered that the application likely fell under Rule 12 of the Court of Appeal (Civil) Rules, which provides for a stay of execution of a judgment pending an appeal against it. The court examined the relevant factors in deciding whether to grant the stay, including whether the appeal may be rendered nugatory by the lack of a stay, the bona fides of the applicant, whether the successful party would be injuriously affected by the stay, the effect on third parties, the novelty and importance of the questions involved, the public interest in the proceeding, and the overall balance of convenience.

The plaintiffs, Bruce James Read, Ethne Gladys Read, and Christopher John Read, responded to the application, noting that the defendant had applied to the Court of Appeal for an extension of time for the appeal, given that the appeal was filed outside the 20 working day period. The plaintiffs had opposed the application for an extension, which was set down for an oral hearing in the Court of Appeal. In the circumstances, the plaintiffs accepted on a pragmatic basis that enforcement of the judgment should be stayed on an interim basis until the application for an extension was determined by the Court of Appeal. However, they reserved the right to oppose any continuation of the stay and to seek terms, including payment of expenses and/or rent.

The court granted the application for a stay until the outcome of the application for an extension was known. The parties were directed to revert to the court once the outcome of that application was available. Costs on the stay application were reserved.

In summary, the High Court granted the defendant's application for a stay of enforcement of the judgment until the outcome of the application for an extension was known. The plaintiffs reserved their right to oppose any continuation of the stay and to seek terms, including payment of expenses and/or rent. Costs on the stay application were reserved.

Orders