Robertson v Robertson

[2020] NZHC 2694

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2655

[2020] NZHC 2694

IN THE MATTER

of Section 339 of the Property Law Act 2007

BETWEEN

CONRAD CHRISTIAN ROBERTSON

Plaintiff

AND

MARTIN JAMES ROBERTSON

Defendant

On the papers

Appearances:

KB Dillon for Plaintiff

G Kohler QC for Defendant

Judgment:

14 October 2020

JUDGMENT OF WALKER J

This judgment was delivered by me on 14 October 2020 at 2.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

ROBERTSON v ROBERTSON [2020] NZHC 2694 [14 October 2020]

[1]                 In an interim judgment I made orders for sale by auction of the property owned by the parties as tenants in common in equal shares.1

[2]                 The plaintiff is appealing that judgment. As an appeal does not act as a stay, the plaintiff now applies for a stay. It is axiomatic that should my interim orders not be stayed, any appeal would be rendered nugatory. Thus, the only contest between the parties is what, if any, conditions ought to attach to the stay aside from the usual condition to prosecute the appeal diligently.2

[3]                 Mr Kohler QC for the defendant stresses the current buoyant property market but uncertainty resulting from the Covid 19 pandemic. It is possible that the market will drop. He submits that it would be unjust if the defendant has to bear 50% share of any diminished return in that event. He urges two conditions:

(a)Within one month the appellant is to prepare the case on appeal and to seek a hearing date on the first available date in the Court of Appeal (subject to counsel availability);

(b)Within one month the appellant to provide an undertaking to the effect that he undertakes to compensate the respondent for any damage sustained through the stay.

[4]                 The undertaking in 4(b) is framed in the same terms as an undertaking required on an application for an interlocutory injunction.

[5]                 The plaintiff does not object to a strict timeframe for the preparation of the case on appeal but submits that the one-month time frame proposed by the respondent is impractical. He proposes that the time for filing the Case on Appeal on  or before   30 November 2020. I accept that this is realistic. I would expect that steps have already been taken to that end.

1      Robertson v Robertson [2020] NZHC 2272.

2      Rules 12(3) and (4) of the Court of Appeal (Civil) Rules 2005.

[6]                 Ms Dillon, for the plaintiff, points out that the plaintiff offered to purchase the respondent’s share of the property on 17 September 2020 based on the respondent’s valuation of the property, notwithstanding that this valuation was $1.5M more than the plaintiff’s valuation. That offer was repeated on 29 September 2020. The plaintiff received no response. The offer sets a valuation “marker”. I accept the proposition that should delay by an appeal mean that the sale price ultimately achieved (if the appeal does not succeed) is less than this proposed sale price, the defendant bears responsibility. If delay means that the sale price exceeds this offer, there is no loss to the defendant.

Outcome

[7]                 Accordingly, I grant the application for stay pending appeal with the following condition:

By 30 November 2020, the appellant is to prepare the case on appeal and seek a hearing date on the first available date in the Court of Appeal (subject to the availability of counsel).

[8]Costs are reserved.

[9]Leave to the parties to apply.

.........................................................

Walker J