Smith v Land Information New Zealand

[2023] NZCA 434

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA432/2023
 [2023] NZCA 434

BETWEEN	DENNIS ARTHUR SMITH Applicant
AND	LAND INFORMATION NEW ZEALAND Respondent

Court:	Cooper P and Goddard J
Counsel:	Applicant in person G J C Carter for Respondent
Judgment: (On the papers)	8 September 2023 at 11.00 am

JUDGMENT OF THE COURT

AThe application for a stay is declined.

BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

1. Land Information New Zealand (LINZ) administers surplus railway land in New Zealand, including land at 2A Para Street, Taumarunui (the property).  Mr Smith presently occupies that property.  LINZ sought summary judgment in the High Court for possession of the property.  On 4 July 2023 Associate Judge Brittain entered judgment for LINZ (High Court judgment) on the following terms:[1]

   (a)A declaration that LINZ is entitled to possession of the property.

   (b)An order that Mr Smith, together with any other person occupying the property, vacate the property within five working days of delivery of the judgment.

   (c)Mr Smith shall pay LINZ’s costs for all steps in the proceeding on a 2B basis, together with disbursements, as fixed by the Registrar.

   [1]Land Information New Zealand v Smith [2023] NZHC 1700 at [51].

2. On 7 July 2023 Mr Smith applied to the High Court for a stay of enforcement of the High Court judgment.  At a telephone conference on 10 July 2023 the Judge granted an interim stay of enforcement pending further order of the Court.  Mr Smith’s application for a stay was heard on 7 August 2023.  On 11 August 2023 the Judge delivered a judgment declining to grant a stay (stay judgment).[2]  The Judge confirmed the declaration and order given in the High Court judgment, and made orders requiring Mr Smith to vacate the property by 12.00 pm on 11 September 2023, on certain terms including the following:[3]

   [2]Land Information New Zealand v Smith [2023] NZHC 2147.

   [3]At [24].

   (d) The defendant shall vacate the property at 2A Para Street, Taumarunui, by 12 pm on 11 September 2023, on the following terms:

   (i) the defendant shall remove his house truck and any other vehicles from the property;

   (ii) the defendant shall remove all of his chattels and possessions from the property, including all machinery, subject to the exception below in para (d)(iii);

   (iii) the defendant may leave his four shipping containers in situ on the property, provided that the shipping containers are emptied of all contents by 12 pm on 11 September 2023;

   (iv) the defendant shall have no further access to the shipping containers, other than as provided below in para (d)(v);

   (v) if the defendant wishes to remove the shipping containers from the property after 11 September 2023, he shall first obtain the plaintiff’s written consent to access the property for the purpose of removing the shipping containers, and remove the shipping containers on the terms reasonably imposed by the plaintiff in writing; and

   (vi) if the shipping containers are removed, the defendant shall have no right to return the shipping containers to the property.

   (e) Any other person on the land must vacate the land immediately.

   (f) Pending determination of the defendant’s appeal of the judgment, LINZ shall not:

   (i) lease the property at 2A Para Street, Taumarunui, to any party, or grant any right to any party to possess or occupy the property; or

   (ii) remove or alter any of the buildings on the property.

   (g) The orders as to interim relief in paras (d) and (f) are conditional on the defendant pursuing his appeal to the Court of Appeal with diligence, and leave is granted to LINZ to seek a variation or revocation of these orders if the defendant fails to comply with this condition.

   (h) If there is any dispute regarding implementation of these orders, then leave is reserved to the parties to seek further orders from the Court.

3. On 2 August 2023, shortly before his application for a stay was heard in the High Court, Mr Smith filed an appeal to this Court from the High Court judgment.

4. On 4 September 2023 Mr Smith applied to this Court for a stay of enforcement of the High Court judgment pending appeal.  He says that his appeal would be rendered nugatory if a stay is not granted.  He says that if he is required to move out of the property, and move all his tools and other assets out of the buildings on the property, then move them back in again if his appeal is successful, he will suffer a substantial loss.  By comparison, he says, the potential costs to LINZ from any stay would be small.

5. Mr Smith filed an affidavit in this Court in support of his application for a stay, which attached a copy of an affidavit from Mr Adrian Leineweber dated 16 August 2023 which Mr Smith wished to file in support of his High Court stay application.  It appears he encountered some difficulties in doing so.  Mr Leineweber’s affidavit expresses an opinion on the value of the tools and other items at the property.

6. The application for a stay is opposed by LINZ, essentially on the grounds relied on by the Judge in declining a stay.  LINZ says that the terms on which the Judge made his orders are sufficient to protect Mr Smith’s interests pending his appeal.  Accordingly, the outcome of Mr Smith’s appeal would not be rendered nugatory if this Court declined Mr Smith’s stay application.

7. Mr Smith filed a memorandum in reply dated 6 September 2023.  In it he essentially repeats the arguments he advanced in making the application.  He says that although it is technically true that the appeal would not be rendered nugatory if a stay is declined, that is not true practically.  He emphasises the cost of moving more than one hundred machines and more than half a dozen van and trailer loads of family trust assets, and the impact (personal and financial) that would have on him.

8. We have carefully reviewed all the material filed by the parties.  We are not persuaded that enforcement of the judgment will render Mr Smith’s appeal nugatory.  The prospects of success for the appeal do not appear strong.  We agree with the Judge that a stay is not appropriate, essentially for the reasons he gave.  The orders made by the Judge when declining the stay strike a fair balance between the interests of Mr Smith and LINZ pending the hearing of Mr Smith’s appeal.

Result

1. The application for a stay is declined.

2. There is no order as to costs.

Solicitors:
BVA The Practice, Palmerston North for Respondent