Small (2005) Limited v Mahon - [2025] NZHC 1697

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002333 [2025] NZHC 1697

BETWEEN
SMALL (2005) LIMITED

Plaintiff/Respondent

AND

NEVILLE CHRISTOPHER MAHON

Defendant/Applicant

Hearing: 18 June 2025

Appearances:

A R Barker KC and R B Hucker for Applicant D Chisholm KC and M Lenihan for Respondent

Judgment:

25 June 2025

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 25 June 2025 at 2.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date: …………………………………

SMALL (2005) LTD v MAHON [2025] NZHC 1697 [25 June 2025]

Introduction

[1]In a judgment dated 5 November 2024, Wilkinson-Smith J:1

(a)held that the defendant, Mr Mahon, was liable to the plaintiff (Small) in the amount of $6,518,491.20 plus interest to be calculated in accordance with the loan agreement; and

(b)dismissed Mr Mahon’s counterclaim.

[2] Mr Mahon has appealed the judgment to the Court of Appeal. The appeal was filed in November 2024.

[3] Small subsequently served a bankruptcy notice dated 10 December 2024 on Mr Mahon in which the judgment debt was quantified at that date as being
$11,886,815.47.

[4] In the present interlocutory proceedings, Mr Mahon, as applicant, seeks a stay of execution of the judgment pending the determination of the appeal by the Court of Appeal.2

Factual background

[5] The application for stay was filed and served in November 2024. It was not supported by any affidavit evidence when it was filed. Mr Mahon did not file and serve his affidavit in support until 10 June 2025.

[6] Mr Hucker, on behalf of Mr Mahon, sent an email to the Court on 2 December 2024 stating that:

It is intended that any Affidavit in support of the application be filed by 20 December 2024.

[7] On 12 December 2024, Small’s counsel filed a memorandum stating the application was opposed but that, until affidavits in support were provided, Small

1 Small (2005) Ltd v Mahon [2024] NZHC 3251.
2 Court of Appeal (Civil) Rules 2005, r 12.

would be unable to file any affidavits in support of its opposition. Small stated that a formal notice of opposition would be filed and served once Mr Mahon had filed and served an affidavit in support.

[8] On 18 February 2025, the Court sent an email to the parties stating that it was working on the matter and that the provision of a timetable would be helpful. There was no reply by Mr Mahon.

[9] On 6 May 2025, Small, by its counsel, sent an email to the Registry noting that no affidavit in support had been filed by Mr Mahon and sought the listing of the application before the Duty Judge.

[10] On 9 May 2025, Small filed a notice of opposition to Mr Mahon’s application that noted that an affidavit in support would follow once Mr Mahon filed an affidavit in support of the application.

[11] That same day, Mr Hucker sent an email to…

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 Small (2005) Limited v Mahon

Details

AGLC: Small (2005) Limited v Mahon [2025] NZHC 1697
Case: [2025] NZHC 1697
Decision Date: 25 June 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Small (2005) Limited sought to enforce a judgment debt against Neville Christopher Mahon. The case involves an appeal by Mahon against the original judgment of Wilkinson-Smith J, in which Mahon was held liable for $6,518,491.20 plus interest. The primary legal issues in the appeal were the merits of the judgment and the procedural correctness of the bankruptcy notice served on Mahon. The court had to decide whether to grant a stay of execution pending the appeal, considering factors such as the likelihood of the appeal's success, the appellant's financial situation, and the effect on third parties.

The court's analysis focused on the delay in filing the affidavit supporting the stay application and the lack of transparency regarding Mahon's financial circumstances. The court noted that the general rule requires security to be provided for a stay of execution, but it also considered the discretionary factors outlined in the relevant legal principles. The court acknowledged the substantial judgment debt and the potential importance of the appeal but found that Mahon had not adequately demonstrated his inability to provide security. The belated filing of the affidavit and the lack of detail regarding his financial situation further undermined his application. The court also highlighted the potential prejudice to creditors from postponing the clawback time for irregular or voidable transactions under the Insolvency Act 2006, suggesting that the matter be addressed at the bankruptcy stage rather than through a stay application.

Based on these considerations, the court concluded that it was not in the interests of justice to grant the stay. The application by Mahon for a stay of execution was therefore refused. The court indicated that Small is likely entitled to costs on a 2B basis plus disbursements, subject to agreement or further submissions if necessary.

Orders