Strachan v Moodie - [2014] NZHC 127

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2013-454-000064 [2014] NZHC 127

IN THE MATTER OF the Insolvency Act 2006

BETWEEN ELIZABETH GRACE STRACHAN Judgment Creditor

ANDROBERT ALEXANDER MOODIE Judgment Debtor

Hearing: 11 February 2014

Appearances: L Castle for Judgment Creditor
Judgment Debtor in person

Judgment: 13 February 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to stay

[1] Mr Moodie has filed an appeal against the judgment of 11 December 2013 by which I refused to set aside a bankruptcy notice.1

[2] Mr Moodie applies for an order staying execution of my judgment. In his application, Mr Moodie undertakes to pursue his appeal to a substantive hearing as quickly as is reasonably possible.

[3] The judgment creditor has not filed opposition to the application. By a memorandum filed by her counsel she indicates that she does not wish to oppose the stay application and would have consented to the application had Mr Moodie been prepared to agree to conditions as to the seeking a fast track appeal and as to the
payment of security for costs in relation to the application for a stay.

1 Strachan v Moodie [2013] NZHC 3312.

STRACHAN v MOODIE [2014] NZHC 127 [13 February 2014]

Jurisdiction

[4] The Court has power under r 12(3) Court of Appeal (Civil) Rules 2005 to order, pending the determination of an appeal, a stay of the proceeding in which the appealed decision was given or a stay of execution of the decision.

Discussion

[5] If Mr Moodie succeeds in his appeal, the bankruptcy notice will be set aside. If there is no stay in the meantime, the effect of that (assuming Mr Moodie does not in the meantime make payment without prejudice) will be that he has committed an act of bankruptcy. It is just that that not occur while there is the possibility that the bankruptcy notice will be set aside on appeal.

[6] The real issue between the parties is whether there should be conditions attaching to the stay.

[7] It is convenient to deal first with the judgment creditor’s request for a condition as to the payment of security in relation to this application. I am not prepared to make a condition as to payment of security in relation to an application of the present nature brought promptly and dealt with promptly at the first call. It is however appropriate that I deal with the costs of the present application to the extent I can and I do at the conclusion of this judgment.

[8] The second condition sought by the judgment creditor is that Mr Moodie promptly file a memorandum in the Court of Appeal seeking a fast track appeal. I do not consider the imposition of such a condition necessary. The 2011 Practice Note in relation to the Fast Track practice in the Court of Appeal (PN 39) refers, in paragraph 3(1), to the Fast Track being intended for appeals expected to take no more than half a day’s hearing time,…

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 Strachan v Moodie

Details

AGLC: Strachan v Moodie [2014] NZHC 127
Case: [2014] NZHC 127
Decision Date: 13 February 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Palmerston North Registry, a case was heard between Elizabeth Grace Strachan, the judgment creditor, and Robert Alexander Moodie, the judgment debtor. The dispute was about an appeal filed by Mr Moodie against the bankruptcy notice issued against him. The case was decided by Associate Judge Osborne. The judgment creditor, Ms Strachan, did not oppose Mr Moodie's application for a stay of execution of the judgment. However, she suggested conditions for the stay, including the payment of security for costs and a fast track appeal for the application. Mr Moodie had already undertaken to pursue his appeal as quickly as reasonably possible. The court decided that imposing conditions such as the payment of security for costs or a fast track appeal was unnecessary. However, the court did reserve leave to the judgment creditor to apply for further directions if the appeal was not pursued as quickly as reasonably possible. The court ordered a stay of execution of the judgment, with the time for payment pursuant to the bankruptcy notice extended until further order. The costs of the stay application were to follow the event of the appeal.

Orders