Stringer v Craig - [2020] NZHC 2210

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2015-404-2524

[2020] NZHC 2210

BETWEEN
JOHN CHARLES STRINGER

Plaintiff

AND

COLIN GRAEME CRAIG

First Defendant

HELEN RUTH CRAIG
Second Defendant

ANGELA MARIA STORR
Third Defendant

KEVIN ERIC STITT

Fifth Defendant

STEPHEN DYLAN TAYLOR

Sixth Defendant

Hearing: On the papers

Appearances:

J C Stringer in person

C G Craig, H R Craig, A M Storr, K E Stitt, S D Taylor in person W Akel, Counsel assisting the Court

Date of judgment:

27 August 2020

JUDGMENT NO 5 OF PALMER J

(Stay)

This judgment was delivered by me on 27 August 2020 at 4.00pm. Pursuant to Rule 11.5 of the High Court Rules.
…………………………
Registrar/Deputy Registrar

Parties and counsel assisting:

J C Stringer C G Craig

H R Craig

WAkel, Barrister A M Storr K E Stitt
S D Taylor

STRINGER v CRAIG NO 5 (STAY) [2020] NZHC 2210 [27 August 2020]

What happened?

[1] On 3 April 2020, I issued judgment in these proceedings, in favour of the defendants.1 On 18 May 2020, I awarded costs to the defendants.2 On 18 June 2020, I made further directions as to costs.3 Costs were fixed at $77,238.43. Mr Stringer applied to the Court of Appeal for leave to appeal out of time, which was granted on 16 July 2020.4

[2] On 21 July 2020, a charging order was registered against a leasehold property owned by Mr Stringer and his wife in respect of payment of the costs award to the defendants. On 4 August 2020, Mr Stringer says Mr Taylor sought payment of the costs award or he would apply to sell the property.

[3] On 4 August 2020, I issued Minute No 18 observing that an appeal of a judgment and costs award does not operate as a stay of the costs award or its execution.5 I directed that, if Mr Stringer did not pay the costs, or apply to the High Court or Court of Appeal for a stay of enforcement of the costs award, within five working days of the date of the minute, the security of $5,000 held by the Auckland High Court would be released to the defendants.

Application and submissions

[4]On 10 August 2020, Mr Stringer applied to the Court to:

(a)rescind the charging order;

(b)stay enforcement of the costs award until his appeal is heard;

(c)continue to hold his security of $5,000 until the appeal is heard;

(d)order Mr Craig to pay costs for discovery that he says the Court ordered in 2016; and

1      Stringer v Craig (No 3) [2020] NZHC 644.
2      Stringer v Craig (No 4) [2010] NZHC 1021.
3      Minute No 17, 18 June 2020.
4      Stringer v Craig [2020] NZCA 294.
5      Court of Appeal (Civil) Rules 2005, r 12(1).

(e)apparently, also, stay a bankruptcy notice against him, which had not then been served.

[5] Mr Stringer submits that if no stay is granted, his bona fide appeal…

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 Stringer v Craig

Details

AGLC: Stringer v Craig [2020] NZHC 2210
Case: [2020] NZHC 2210
Decision Date: 27 August 2020

CaseChat Overview and Summary

The High Court was asked to determine whether to stay enforcement of a costs award against the plaintiff, Mr Stringer, in proceedings between Mr Stringer and several defendants. The case arose out of a libel action, where Mr Stringer was unsuccessful. The court had awarded costs to the defendants and had registered a charging order against Mr Stringer’s property to secure payment of those costs. Mr Stringer had been granted leave to appeal out of time, and he applied to the court to stay enforcement of the costs award. The defendants opposed the application. The court had to determine whether the appeal had sufficient prospects of success to warrant a stay of enforcement of the costs award.

The court considered the balance of convenience between the parties in deciding whether to grant a stay. It held that the balance of convenience favoured Mr Stringer. The court considered that if the stay was not granted, Mr Stringer would be forced into bankruptcy, which would seriously affect his ability to pursue the appeal and would negatively impact his wife. The court also considered that the defendants had undertaken to repay the security for costs if they were not successful on appeal. The court found that the merits of the appeal were weak, but that did not determine the outcome of the application for a stay. The court granted the stay of enforcement of the costs award and released the security for costs to the defendants, on the condition that they repay it if they were not successful on appeal.

Orders