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, which would seem likely to apply in this case. But whether a particular appeal is suitable for the fast track is properly a matter for the view of the Court of Appeal rather than this Court.  It is open to the judgment creditor under paragraph 4(1) of the Practice Note, to apply unilaterally for entry on

the fast track (with the application able to be made more than five working days after the filing of the appeal if a Court of Appeal Judge allows that further time).

[9]      For his part, Mr Moodie has already filed his undertaking as to pursuing the appeal to a substantive hearing as quickly as is reasonably possible.

[10]     In  the  circumstances,  the  position  of  the  judgment  creditor  will   be appropriately protected if I reserve leave to the judgment creditor to apply on the present application for further directions in relation to the stay.  If Mr Moodie has failed to pursue his appeal to a substantive hearing as quickly as is reasonably possible, a continuation of the stay is unlikely.

Order

[11]     I order:

a)        I  hereby  stay  execution  of  the  judgment  of  this  Court  dated  11

December 2013 [2013] NZHC 3312, with the effect that the time for payment pursuant to the bankruptcy notice is extended until further order of this Court.

b)Leave is reserved to the judgment creditor, should the appeal not be pursued as quickly as reasonably possible, to apply on three days notice for further directions in relation to the present application for amendment and/or for rescission of this stay.

c)       The costs of the stay application to date are fixed on a 2B basis and they,  together  with  disbursements  are  to  follow  the  event  of  the appeal,  being  payable  to  the  judgment  creditor  if  the  appeal  is

dismissed and to the judgment debtor if the appeal is successful.

Solicitors:

Izard Weston, Lawyers, Wellington for Judgment Creditor

Counsel
P Churchman QC
Mr Moodie in person

Associate Judge Osborne