Siemer v Stiassny

[2006] NZCA 303

IN THE COURT OF APPEAL OF NEW ZEALAND

CA150/06

BETWEENVINCENT SIEMER

Applicant

ANDMICHAEL STIASSNY AND FERRIER HODGSON

Respondents

Hearing:18 September 2006

Court:William Young  P, Robertson and Arnold JJ

Counsel:Applicant in Person

J G Miles QC for Respondents

Judgment:26 October 2006 at 11 am

JUDGMENT OF THE COURT

Interim stay discharged.

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REASONS OF THE COURT

(Given by Robertson J)

[1]       In an interim on the papers judgment issued on 25 September 2006, the Court said at [17]:

Mr Siemer is granted leave to file evidence only as to his current financial position within 21 days of the date of this interim judgment.  In the absence of appropriate evidentiary material which demonstrates an inability to pay the $200,000, the Court will make an order removing the stay.

[2]       Although the present proceedings were put forward as an appeal against the judgment of Potter J refusing a stay, we have treated them as being in substance an application to this Court for a stay.  This is because a judgment declining a stay is not itself subject to appeal given that this Court has the originating jurisdiction to grant a stay.  In saying this we note that there is one substantive issue as to the quantum of costs which is an appeal point and will be dealt with substantively by the Court.

[3]       In her judgment of 10 May 2006 in which she declined Mr Siemer’s application for a stay, Potter J said at [14]:

(a)Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative).

This case does not give rise to such a consideration.  If the defendants were to be successful on appeal then there will simply be an appropriate financial adjustment in respect of the fine and/or costs orders made by the judgment.

[4]       In determining whether there should be a stay, it would not be right for us to decide the substantive issues in CA55/06.  We have instead approached the case on the basis that appeal is arguable.  On the application of orthodox principles, we ought not to grant a stay unless there are good grounds for doing so.  If Mr Siemer meets the orders made against him and succeeds on appeal, any money he pays will have to be refunded. 

[5]       We note in passing that, if Mr Siemer had been concerned whether he would get his money back in those circumstances, this Court could have (and indeed would still be prepared to) direct that the money in question simply be paid into Court, pending the outcome of the appeal.  That, however, has not to date been the course adopted by Mr Siemer and indeed the suggestion made by the respondents was that he is not in a position to meet the orders against him.  For this reason, the Court has been anxious to ensure that if Mr Siemer is genuinely unable to meet the orders against him in the meantime, he is not subject to enforcement action which renders his appeal nugatory.

[6]       Our judgment of 25 September 2005 provided an interim stay and gave Mr Siemer the opportunity to file evidence as to his current financial position.

[7]       Since 25 September 2006, there have been various inquiries made by Mr Siemer as to the matters in which the Court was interested.  Minutes were issued confirming that the Court’s sole concern at this stage was in evidence relating to his financial position inasmuch as that could impact on his ability to prosecute the substantive appeals.

[8]       An extension of time was eventually granted until 4pm on 24 October 2006. No information has been proffered with regard to his financial position.

[9]       In the absence of any information suggesting that the right of appeal will be rendered nugatory, there is no reason for this Court to intervene and grant a stay. 

[10]     As already noted, Mr Siemer has the option of paying into Court the amounts which are due under the two orders as an alternative to paying the money to the appellants pending the appeal.  That choice is for him, but in terms of the interim judgment the interim stays which were issued are now discharged.

Solicitors:
McElroys, Auckland, for Respondents