Scott v Scott

IN THE COURT OF APPEAL OF NEW ZEALAND
CA711/2009
[2010] NZCA 209
BETWEENLEWTYN MICHAEL SCOTT

Appellant

ANDROSEMARY ANN SCOTT

First Respondent
ANDLEE MCNEILLY

Second Respondent
ANDALISON SCOTT

Third Respondent
ANDCARA ANN CLARE

Fourth Respondent

Court:O'Regan, Arnold and Ellen France JJ
Counsel:Mr Scott in person

R E Harrison QC for Respondents

Judgment:24 May 2010 at 11 am

(On the papers)

JUDGMENT OF THE COURT

A The application for stay is dismissed.
BCosts are reserved. Leave is reserved for the respondents to seek costs – see [4] of the Reasons of the Court.

REASONS OF THE COURT
(Given by O’Regan J)
[1]        On 28 April 2010, Mr Scott filed a document said to be an application for extension of time and an application for stay. He indicated to the Court registry staff that the application for stay was a matter of urgency and needed to be drawn to the attention of a judge immediately. The matter was placed before O’Regan J who indicated that he was not prepared to grant a stay on an ex parte basis. O’Regan J directed that the material filed by Mr Scott be served on the respondents’ counsel and solicitors, and that their response be sought by memorandum to be filed and served by 5 May 2010. That memorandum was received on 4 May 2010, and Mr Scott was given the opportunity to reply. This he did by a memorandum dated 9 May 2010.
[2]        This judgment deals with the application for stay. Mr Scott is seeking urgent interim orders preventing the implementation of the orders made by Stevens J in his judgment dated 5 August 2009. This is essentially the same relief that he sought in an application for stay which was dismissed by this Court on 18 September 2009.[1] The Supreme Court refused leave to appeal against that decision.[2] The matter is now res judicata and it is a clear abuse of the process of the court to renew an application which has already been dealt with by the court.
[1]      Scott v Scott [2009] NZCA 417.
[2]      Scott v Scott [2009] NZSC 111.
[3]        For this reason the application for stay is dismissed.
[4]        Mr Scott has other matters before the Court and in the circumstances we consider that it is appropriate that cost issues be dealt with when those matters are resolved. We therefore reserve costs in relation to the present application. We give leave to the respondents to seek costs when those other matters come to a hearing or, if there is no hearing in the next six months, by application in writing to the Court.
Solicitors:
O’Sullivan Clemens, Rotorua for Respondents

CaseChat Overview and Summary

In the case of Scott v Scott, Lewtyn Michael Scott, the appellant, sought a stay of execution of previous orders made by Stevens J, which were confirmed by the Court of Appeal on 18 September 2009. The respondents, Rosemary Ann Scott, Lee McNeilly, Alison Scott, and Cara Ann Clare, opposed the application. The Court of Appeal was asked to determine whether the appellant's application for a stay should be granted, considering it had already been dismissed previously and that it amounted to an abuse of process. The central legal issue was whether the appellant's application for a stay, which had already been dismissed by the Court of Appeal, could be resubmitted under the guise of urgency, given that it had been deemed an abuse of process.

The Court of Appeal, presided over by O'Regan J, considered the appellant's attempt to resubmit the application for a stay despite it having been dismissed previously. The court found that the application was an abuse of process, as it was essentially a resubmission of the same relief that had already been denied. The court also noted that the Supreme Court had refused leave to appeal the earlier decision. Consequently, the court held that the application for a stay should be dismissed, as it was res judicata and an abuse of the court's process. The court reserved the issue of costs to be addressed when the appellant's other matters before the court are resolved, allowing the respondents the opportunity to seek costs if those matters come to a hearing or through written application if no hearing occurs within six months.

In summary, the Court of Appeal dismissed the appellant's application for a stay, finding it to be an abuse of process due to its previous dismissal and the refusal of leave to appeal. The court reserved the issue of costs for later determination, giving the respondents the opportunity to seek costs when the appellant's other matters are resolved or through written application if no hearing occurs within six months.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established