Stiles v Stiles

[2019] NZHC 3077

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1390

[2019] NZHC 3077

IN THE MATTER

Of an appeal under s 39 of the Property (Relationships) Act, 1976 and s 124 of the District Courts Act, 2016

BETWEEN

ANDREW MARK STILES

Appellant

AND

PENNIE LEE STILES

First Respondent

PENNIE LEE STILES and WACKROW SMITH AND DAVIES TRUSTEE
SERVICES LIMITED as Trustees of THE STILES FAMILY

Second Respondent

On the papers:	At Auckland
Judgment:	25 November 2019

JUDGMENT OF POWELL

[Application for Stay]

This judgment was delivered by me on 25 November 2019 at 4 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:      TGT Legal, Auckland

R Knight, Auckland

Ewart & Ewart, Epsom, Auckland M Vickerman, O’Connell Chambers

STILES v STILES [2019] NZHC 3077 [25 November 2019]

[1]        The applicant, Mr Stiles, has applied without notice (on a Pickwick basis) for a stay of execution of a Family Court judgment delivered by Judge A M Manuel on 13 June 2019.1

[2]        The timing of the application appears somewhat strange. Leaving aside that it is now five months since the judgment was issued, Mr Stiles appeal will in fact be heard in this Court on 2 and 3 December 2019. Moreover, an earlier application for stay was in fact declined by the Family Court on 12 September 2019, a decision that has not been appealed, nor has any copy of the decision been provided to the Court on this application.

[3]        Turning to the application itself, the primary concern of Mr Stiles seems to be that if the matrimonial property is sold as directed by Judge Manuel it will not realise its full value. As a result he seeks the opportunity to pay for what he considers to be necessary repairs to be undertaken in respect of the property. This seems to be less in the nature of an application for a stay and more in the nature of an application for variation of Judge Manuel’s orders. In this regard I note that it is apparent from correspondence from the respondent, Mrs Stiles, annexed to the application that Mrs Stiles has in fact previously proposed “the general clean up of the house and grounds [with] a sum sufficient for that purpose, but this has been rejected”. Indeed, Mrs Stiles appears to be concerned that Mr Stiles will use any opportunity to undertake works at the house to delay matters further and/or to regain possession of the house, both of which courses of action being opposed by the respondent.

[4]        Leaving these considerations aside, there is otherwise absolutely no evidence adduced by Mr Stiles to indicate that the property will be sold prior to the hearing and disposal of the appeal, and there is in fact no evidence whatsoever of any event occurring since the Family Court declined the earlier stay application, or even whether the property is currently listed for sale.

[5]        A party seeking a stay must persuade the Court to grant the application. It is then that, in exercising its discretion, the Court will engage in a balancing exercise,

1      Stiles v Stiles [2019] NZFC 3695.

weighing up the position of both parties.2 Taking the various matters together however I conclude that Mr Stiles has provided absolutely no basis for a stay to be granted. As a result it is not necessary to hear from Mrs Stiles, and the application is dismissed accordingly.

Powell J

2      Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA); and Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd [1999] 3 NZLR 239, (1999) 13 PRNZ 48 (HC).