Rocket Surgery Limited v Goodwin - [2012] NZHC 3319

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000335 [2012] NZHC 3319

BETWEEN ROCKET SURGERY LIMITED Respondent/Plaintiff

ANDWAYNE ERNEST GOODWIN AND MARY ELIZABETH GOODWIN Applicants/Defendants

Hearing: 5 December 2012 (by telephone)

Appearances: A C Beck for Applicants/Defendants
R J M Sim for Respondent/Plaintiff

Judgment: 10 December 2012

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to application for stay of execution]

Introduction

[1] By a summary judgment granted on 19 October 20121 I found that a trust existed in relation to a property legally owned by the plaintiff. While the sale of the property was resisted by the defendants, I found the power under s 64 Trustee Act
1956 to be applicable to the situation. The plaintiff established beyond argument that the sale of the property was expedient in the administration of the trust and should be ordered on terms.

[2] The defendants now apply for a stay of execution of that judgment, pending an appeal to the Court of Appeal. The appeal was filed on 16 November 2012.

1 Rocket Surgery Ltd v Goodwin [2012] NZHC 2572.

[3] In their grounds of appeal, the defendants say (I summarise) that the case was unsuitable for summary judgment and that s 64 Trustee Act was not applicable. To the extent I awarded increased costs to the plaintiff, that decision is also appealed as being wrong.

[4] The stay application is comprehensive and encompasses the costs order. However, Mr Beck addressed no submissions specifically to a stay in relation to the costs order. All his submissions were focussed on the substantive judgment. No authority was referred to in support of any proposition that there should be a stay in relation to the costs order. None of the central considerations concerning nugatory appeals, addressed in some detail by Mr Beck in relation to the substantive judgment, is applicable to the costs order. There is no suggestion that the plaintiff will be unable to repay any costs it receives as a result of the costs order I made. For that reason I will be dismissing the application for stay so far as it affects the costs order. This judgment now turns to focus on the part of the judgment to which submissions were addressed.

Factual background

[5] The background to the arrangements which were entered into by the plaintiff and the defendants is set out in the necessary detail in my judgment of 19 October
2012.2

[6] Put simply, the plaintiff was a white knight. It is a company of which the defendants’ son-in-law is a director and shareholder. It came to the defendants’ rescue when they were facing a mortgagee sale of “Chelmsford”, their Mosgiel property. In accordance with arrangements agreed upon the plaintiff purchased the property from the mortgagee. It arranged finance. It settled the purchase. It proceeded to hold the property for a period to give the defendants an opportunity to repurchase the property. If not repurchased by the defendants, the property was to be sold with the defendants to receive…

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 Rocket Surgery Limited v Goodwin

Details

AGLC: Rocket Surgery Limited v Goodwin [2012] NZHC 3319
Case: [2012] NZHC 3319
Decision Date: 10 December 2012

CaseChat Overview and Summary

In Rocket Surgery Limited v Goodwin, the defendants, Wayne Ernest Goodwin and Mary Elizabeth Goodwin, sought a stay of execution of a summary judgment pending an appeal. The respondents, Rocket Surgery Limited, had obtained a summary judgment directing the sale of a property held in trust by them. The defendants sought a stay of execution pending appeal to the Court of Appeal. The primary legal issue was whether the court should grant a stay of execution pending the appeal. The court considered various factors, including the possibility of a nugatory appeal, the bona fides of the appeal, the potential injury to the successful party, the effect on third parties, the novelty and importance of the questions involved, and the overall balance of convenience. The court found that none of the factors indicated that it would be just to stay the summary judgment. The considerations indicated that it would be unjust to the plaintiff and unfair to the third-party financiers to issue a stay. The court dismissed the application for a stay of execution and ordered the defendants to pay the plaintiff's costs of the application.

Orders