Singh v Fairview Contracting Services Limited

[2019] NZHC 3461

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2636

[2019] NZHC 3461

BETWEEN

GURPAL SINGH

Appellant

AND

FAIRVIEW CONTRACTING SERVICES LIMITED

Respondent

On the papers:	At Auckland
Judgment:	20 December 2019

JUDGMENT OF POWELL J

[Ex-parte application to stay proceedings]

This judgment was delivered by me on 20 December 2019 at 3.00 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SINGH v FAIRVIEW CONTRACTING SERVICES LIMITED [2019] NZHC 3461 [20 December 2019]

[1]    The appellant, Gurpal Singh, has applied without notice to the respondent, Fairview Contracting Services Ltd (“Fairview”), for a stay of proceedings pending the hearing of the appeal.

[2]    The appeal relates to a decision of Judge Harrison in the District Court at Auckland.1 Judge Harrison had declined an application for stay of an order from the Tenancy Tribunal filed by Mr Singh apparently pending the resolution of the proceedings in the High Court at Auckland between Mr Singh and RK Developer Limited (“RK”) with regard to a property at 38 West Coast Road which has been purchased by Fairview from RK.

[3]    Judge Harrison declined the application for a stay (and a subsequent application for stay pending the appeal of his decision to this Court) primarily on the basis that regardless of the outcome of the proceedings by Mr Singh against RK it could not affect the title obtained by Fairview. In particular, Judge Harrison noted no fraud was alleged on the part of Fairview, a point confirmed by counsel for Mr Singh in the District Court.2 Judge Harrison also noted that at no time had any caveat been lodged by Mr Singh to protect any interest he had claimed in the property.3

[4]    Given this background it is clear the present application is misconceived as there is effectively nothing to stay from Judge Harrison’s judgment.

[5]    Even if this were not so and the application was rather a further attempt to stay the Tenancy Tribunal decision, as was the issue before Judge Harrison, or some other form of interim relief, the situation remains effectively the same as it was in the District Court. Indeed the only possible difference is that Mr Singh has identified correspondence that shows that Mr Singh’s solicitor appears to have emailed the real estate agent involved in the transaction advising of Mr Singh’s interest in the property, sometime after the property had been sold at auction but before settlement, and stating that Mr Singh would be placing a caveat on the property. It still falls far short of establishing actual knowledge on the part of Fairview of the interest claimed by

1      Singh v Fairview Contracting Services Ltd [2019] NZDC 23928.

2      At [3] and [4].

3 At [5].

Mr Singh, let alone fraud, and in any event, as noted, no caveat to protect Mr Singh’s interest was ever filed, nor any reason given as to why it was not.

[6]    In all of the circumstances there can be no basis for granting a stay, noting that the substantive appeal is indeed concerned only with whether a stay should be granted and that there otherwise are, as Judge Harrison noted, no substantive proceedings extant which could in any way diminish let alone defeat Fairview’s interest in the land. There are therefore no rights to be protected in the interim prior to the substantive hearing of this appeal and a stay can serve no useful function. The application is accordingly dismissed.

Powell J