Watson v Williams - [2012] NZHC 3321

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5994 [2012] NZHC 3321

UNDER the Judicature Act 1908

IN THE MATTER OF recovery of land from an unlawful occupier
- Part 13, Schedule 2 of the Judicature Act
1908

BETWEEN ROHAN THEODORE WALTER WATSON, KELLY MAREE WATSON AND NAPIER INDEPENDENT TRUSTEES LIMITED AS TRUSTEES OF THE STAR TRUST
Plaintiffs

ANDGLYNIS RUTH WILLIAMS AND SHAINE FREDRICK WILLIAMS Defendants

Hearing: 6 December 2012

Counsel: BW Morley for plaintiffs

Appearance: SF Williams, second-named defendant in person

Judgment: 10 December 2012

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for stay]

Solicitors: Hesketh Henry, Private Bag 92 093, Auckland

And To: GR & SF Williams, 40 Mayall Avenue, Beachhaven

WATSON V WILLIAMS HC AK CIV-2012-404-5994 [10 December 2012]

Contents

The application ......................................................................................................... 3

The judgment ........................................................................................................... 3

The grounds in support............................................................................................. 3

The Court’s approach to a stay application .............................................................. 4

Background .............................................................................................................. 5

The notice of appeal ................................................................................................. 5

Consideration of the factors relevant to a stay ......................................................... 6

The defendants’ request that I recuse myself from hearing the say application .... 10

Conclusions ............................................................................................................ 10

Costs ....................................................................................................................... 10

The application

[1] The defendants apply for an order that the judgment I delivered on

29 November 2012 be stayed pending an appeal to the Court of Appeal.

[2] Although the application refers to r 24.10 of the High Court Rules 2008, Mr Williams confirmed to me that the application was in fact made in reliance on r 12 of the Court of Appeal (Civil) Rules 2005. I proceed on that basis. Part 24 clearly has no application as that part deals with insolvency matters.

The judgment

[3] My judgment ordered that the defendants vacate the property at 40 Mayall Avenue, Beachhaven and pay damages and costs. The plaintiffs were the purchaser from the defendants’ mortgagee. The defendants fell into default under the mortgage. A mortgagee sale took place.

The grounds in support

[4] The grounds in support of the application in summary are that: (a) An appeal has been filed;
(b) It is just that a stay be granted;

(c) The appellants have good grounds for an appeal;

(d) The balance of convenience favours the granting of a stay; and

(e) I should recuse myself from hearing this appeal as it is my judgment that is the subject of the appeal.

The Court’s approach to a stay application

[5] The application is made in reliance on r 12 of the Court of Appeal (Civil) Rules 2005. Of particular significance are subrules 3 and 4 which provide:

(3) Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on application,—

(a) order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or

(b) grant any interim relief.

(4) An order or a grant under subclause (3) may—

(a) relate to execution of the whole or part of the decision or to a particular…

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 Watson v Williams

Details

AGLC: Watson v Williams [2012] NZHC 3321
Case: [2012] NZHC 3321
Decision Date: 10 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Watson v Williams involved a dispute over the recovery of land from an unlawful occupier. The plaintiffs, Rohan Theodore Walter Watson, Kelly Maree Watson, and Napier Independent Trustees Limited, sought to recover possession of the property from the defendants, Glynis Ruth Williams and Shayne Fredrick Williams. The plaintiffs were the purchasers from the defendants’ mortgagee, who had fallen into default under the mortgage, leading to a mortgagee sale. The defendants sought an order to stay the judgment delivered on 29 November 2012, pending an appeal to the Court of Appeal.

The court considered several factors in deciding whether to grant a stay. It examined whether the appeal would be rendered nugatory without a stay, whether the plaintiffs would be injuriously affected by the stay, the bona fides of the applicants, the effect on third parties, the novelty and importance of the questions involved, the public interest, the overall balance of convenience, and the apparent strength of the appeal. The court found that the appeal would not be rendered nugatory, and that the plaintiffs would be significantly injured if a stay was granted, as they had already moved into rental accommodation and faced considerable financial burdens. The court also rejected the defendants’ arguments concerning the legal effect of the sales and the jurisdiction of the Tenancy Tribunal, finding no disputed facts and no strong grounds for appeal.

Ultimately, the court refused the application for a stay, concluding that it was not justified. The plaintiffs were awarded costs for the hearing.

Orders