Thompson v Thompson

[2013] NZHC 1946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2616 [2013] NZHC 1946

BETWEEN  CHRISTINE HAMILTON THOMPSON Appellant

ANDMICHAEL LEITH THOMPSON First Respondent

ANDMICHAEL LEIGH THOMPSON, DEAN ALAN ELLWOOD AND BRUCE KENNETH DELL as trustees of the ML Thompson Family Trust

Second Respondents

Hearing:                   2 August 2013

Appearances:           A Hinton QC and S Ambler for the Appellant Lady D Chambers QC for the First Respondent V Bruton for the Second Respondents

Judgment:                2 August 2013

ORAL JUDGMENT OF ANDREWS J

Counsel/Solicitors:

A Hinton QC, Barrister, Auckland
S Ambler, Simpson Grierson, Auckland

Lady D Chambers QC, Barrister, Auckland

V Bruton, TGT Legal, Auckland

THOMPSON v THOMPSON [2013] NZHC 1946 [2 August 2013]

[1]      At the conclusion of the hearing of the appellant’s appeal against the Family Court judgment delivered on 24 April 2013, I have heard an application by the appellant for a stay of enforcement of orders made by the Family Court by consent on 7 December 2011 which dealt with the division of certain property between the parties, as to which agreement had been reached (“the consent orders”).[1]   Paragraph

5 of the consent orders provided that:

The net result of the asset division recorded in 3 and 4 above is that [Ms Thompson] owes to [Mr Thompson] the sum of $2,209,130 to be paid on final settlement.

[1] Thompson v Thompson FC Manukau, FAM 2006-092-1674, 7 December 2011.

[2]      Paragraph 8 of the consent orders provided that Mrs Thompson is to pay interest to Mr Thompson.

[3]      The consent orders have been sealed and there has been no appeal against them.

[4]      The  appeal  that  I  have  heard  relates  to  a  dispute  between  the  parties concerning the status of a restraint of trade payment received by the first respondent on sale of a business.

[5]      It is perhaps convenient to approach the application for stay by referring first to the opposition by the first respondent. That opposition is on two grounds:

(a)      This Court has no jurisdiction to grant the stay sought.

(b)If there is jurisdiction then it should not be exercised in favour of a stay.

[6]      I deal first with the issue of jurisdiction.  The application is brought under r 20.10 of the High Court Rules.  Rule 20.10 provides:

20.10   Stay of proceedings

(1)       An appeal does not operate as a stay—

(a)      of the proceedings appealed against; or

(b)      of enforcement of any judgment or order appealed against.

(2)      Despite subclause (1), the decision-maker or the court may, on application,   do   any   1   or   more   of   the   following   pending determination of an appeal:

(a)      order  a  stay  of  proceedings  in  relation  to  the  decision appealed against:

(b)      order  a  stay  of  enforcement  of  any  judgment  or  order appealed against:

(c)      grant any interim relief.

(3)      An order made or relief granted under subclause (2) may—

(a)      relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:

(b)      be subject to any conditions for the giving of security the decision-maker or the court thinks just.

[7]      In her submissions in support of the application Ms Ambler submitted that r 20.10(2)(c), which provides that the Court may on application “grant any interim relief”, is relied on.   She submitted that sub para (c) is new in the rule and that according to the commentary in McGechan it empowers the Court to make positive directions regarding what is to happen pending an appeal; that it is wider in scope than  the  power  under  s 8  of  the  Judicature Amendment Act  1972;  and  that  it effectively permits the Court to take complete control of the situation and make whatever orders it considers appropriate.   On that basis Ms Ambler submitted this Court has jurisdiction.

[8]      Lady Chambers’ argument  in  opposition  is that  it  is  quite clear that  the application for stay is in respect of an order that was made by consent and has not been, and indeed could not be, appealed against.   She submitted that subpara (c) must be interpreted as being in line with the preceding subparagraphs, and that it must be restricted to what is allowed under 20.10(2)(a) and (b).  As the application for stay does not relate to a judgment, or order, or decision which is appealed against, Lady Chambers submitted that interim relief could not be given.

[9]      Unfortunately it appears that there have been no decisions as yet on subpara (c).   McGechan refers to a decision in Redhill Development NZ Ltd v Green[2]  but notes simply that an application for interim relief was refused in that case on the grounds that orders were not necessary to protect the applicant’s position.

[2] Redhill Development NZ Ltd v Green

[10]     It  appears  to  me  that  there  may be  grounds  for  accepting  Ms Ambler’s submission that subpara (c) is not restricted to orders for interim relief relating to a judgment, or order, or decision appealed against.  I note that r 20.10(3) provides that relief granted under subcl (2) may relate to “the enforcement of the whole of a judgment  or order”  (and  I stress  the word  “a”), suggesting  that  it  is not  to  be confined to the order appealed against.

[11]     I  also  consider  there  is  force  in  Ms  Ambler’s  submission  that  in  this proceeding the consent orders and the judgment appealed against are, in her words, “completely intertwined” in that the consent orders refer to the restraint of trade payment which is the subject of the current appeal.[3]

[3] At paras 6, 8, and 9. It is common ground that if Mrs Thompson succeeds in her appeal, the net effect will be that Mr Thompson will be required to make a payment to Mrs Thompson.

[12]     Accordingly I accept that this Court has jurisdiction in this case to consider an application for stay.  I turn then to consider whether a stay should be granted.  I have been referred to the affidavit evidence filed respectively by Mr and Mrs Thompson.  I will not set out the factual matters in detail.  I have concluded that:

(a)      Mrs Thompson, if required, could pay, or make arrangements to pay, the sum required under the consent orders.  She is under an obligation to pay interest on the sum for so long as it remains unpaid.

(b)If Mr Thompson wishes to pay down debt (as was submitted) then he has the ability and resources to do so, and he is not reliant for that purpose on receiving payment from Mrs Thompson.  It appears on the evidence  that  Mr  Thompson  would  have  the  ability  to  make  a payment to Mrs Thompson if he were required to as a result of this

appeal.

[13]     In the end the balancing exercise has come down to my considering the current situation.  I am advised that Mr Thompson has obtained a charging order in respect of the sum Mrs Thompson is required to pay under the consent orders, and is in the process of having that registered.  It has been indicated that an application for a writ of sale will follow in short order.   Given that circumstance I consider it appropriate to grant relief but for a very restricted period.

[14]     I am prepared to grant a stay of enforcement of the consent order requiring Mrs Thompson to pay Mr Thompson, to expire 48 hours after I have issued my judgment on the appellant’s appeal.  After that, whatever the outcome of the appeal, if the position remains that Mrs Thompson is required to pay Mr Thompson then she will have to make arrangements to do so shortly or seek a further stay.

[15]     I note that Mr Thompson is protected in the interim by the continuing interest obligation.  I am not satisfied that what I anticipate being a short delay in his taking enforcement  steps  is  sufficiently prejudicial  so  as  to  make  it  necessary  for  the application to be dismissed.

[16]     Accordingly, in the terms that I have just set out, the application for a stay is granted.

Andrews  J