Taylor v Asteron Life Ltd - [2019] NZHC 2459

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2015-485-1032

[2019] NZHC 2459

BETWEEN
PETER JAMES TAYLOR

Plaintiff

AND

ASTERON LIFE LIMITED

Defendant

Hearing: On the papers

Counsel:

A C Beck for the Plaintiff

C M Meechan QC and A Borchardt for the Defendant

Judgment:

27 September 2019

JUDGMENT OF COOKE J

(Application for a stay of execution and under the slips rule)

[1] By judgment dated 7 May 2019 I dismissed the plaintiff’s claim, and upheld the defendant’s counterclaim.1 I subsequently determined the defendant’s claims for costs and interest.2 By application dated 30 July 2019 the plaintiff has now applied for a stay of execution pending the hearing of his appeal to the Court of Appeal. He also seeks alteration to two aspects of the orders sealed by the defendant. The application is supported by an affidavit from the plaintiff. The defendant opposes the applications, and has filed and served two affidavits from Michelle Leach and Anne Lindsay. Mr Taylor has also filed an affidavit in reply.

[2] The parties have agreed that the applications should be determined on the papers. A direction to that effect was made by Grice J on 19 August 2019. Written submissions have been filed.

1 Taylor v Asteron Life Ltd [2019] NZHC 978.
2 Taylor v Asteron Life Ltd [2019] NZHC 1489.

TAYLOR v ASTERON LIFE LIMITED [2019] NZHC 2459 [27 September 2019]

Alteration to sealed orders

[3] The plaintiff says that two aspects of the sealed orders should be corrected under r 11.10.

Post-judgment interest

[4] First the plaintiff says that the defendant has wrongly included post-judgment interest in the sealed order. Mr Beck argues that this is not appropriate. Section 87(1) of the Judicature Act 1908, which applies in this case, only allows the award of interest up until the date of judgment. Interest on the amount awarded in a Court’s judgment then arises by operation of law, and is not ordered by the Court.

[5] The submissions from the defendant do not seem to contest this. Ms Meechan QC’s submissions identify that under r 11.27 of the High Court Rules 2016 the judgment carries interest at the rate prescribed by s 87 of the Judicature Act 1908 unless the Court specifies a lesser rate (which it did not do).3 Her submissions accept the proposition that the Court itself does not award interest for the post-judgment period.

[6] For that reason Mr Beck’s point is technically correct and the sealed order dated 28 June 2019 should not include post-judgment interest. The plaintiff should now re-seal the judgment without that amount and return/destroy all copies of the existing order. If necessary I will exercise the powers under r 11.10, but it seems to me preferable that the defendant simply re-seal a corrected order rather than trying to amend the current sealed order under this rule.

Second counsel

[7] The plaintiff next disputes the appropriateness of the defendant sealing its costs award…

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 Taylor v Asteron Life Ltd

Details

AGLC: Taylor v Asteron Life Ltd [2019] NZHC 2459
Case: [2019] NZHC 2459
Decision Date: 27 September 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Peter James Taylor applied for a stay of execution and alteration to sealed orders in relation to his unsuccessful claim against Asteron Life Limited. The plaintiff sought to stay the enforcement of the defendant's judgments pending his appeal to the Court of Appeal, as well as alterations to the sealed orders to remove post-judgment interest and disallow costs for second counsel. The defendant opposed the applications.

The court found that the plaintiff's application to remove post-judgment interest was technically correct, as the court itself does not award interest for the post-judgment period, but this arises by operation of law. The court preferred the defendant simply re-seal a corrected order rather than attempting to amend the current sealed order under r 11.10. However, the court declined to alter the sealed orders to disallow costs for second counsel, finding that second counsel was appropriate in the present case and that the costs as claimed were allowed subject to the disputes addressed in the judgment.

Regarding the stay of execution, the court held that a stay would only be appropriate if security for the defendant's judgment was lodged. No such security was being offered. The court also found little apparent merit in the plaintiff's appeal, as the case failed due to findings of fact rather than complex legal questions. The court dismissed the application for a stay of execution.

The court ultimately dismissed the plaintiff's application for a stay of execution and alteration to sealed orders, finding that the plaintiff had not provided appropriate security and that there was little apparent merit in his appeal.

Orders