Weine v Tadd Management Limited - [2023] NZCA 642

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA239/2023
[2023] NZCA 642

BETWEEN	RUTH RENTON WEINE AND MICHAEL DAVID HOFMANN-BODY AS TRUSTEES OF THE RUTH WEINE FAMILY TRUST Appellants
AND	TADD MANAGEMENT LIMITED Respondent

Counsel:	M Freeman for Appellants F B Q Collins for Respondent
Judgment: (On the papers)	14 December 2023 at 9.30 am

JUDGMENT OF COLLINS J
(Stay Application)

The application for a stay is granted.

____________________________________________________________________

REASONS

The appellants have applied pursuant to r 12 of the Court of Appeal (Civil) Rules 2005 to stay the execution of:
(a)a decision of the High Court delivered on 5 April 2023;[1] and
(b)a costs decision made in relation to the judgment referred to in (a).[2]
[1]Tadd Management Ltd v Weine [2023] NZHC 764 [Substantive High Court judgment].
[2]Tadd Management Ltd v Weine [2023] NZHC 1968 [High Court costs judgment (No 1)]; and Tadd Management Ltd v Weine [2023] NZHC 2573 [High Court costs judgment (No 2)].
The appellants have filed an appeal from the High Court judgment delivered on 5 April 2023. In that judgment the appellants were ordered to pay damages in the sum of $609,842.20, plus interest and costs.[3]
[3]Substantive High Court judgment, above n 1, at [247], [256]–[259], and [368].
The damages award followed a finding by the High Court that the appellants had misrepresented the seismic assessment rating of a building which the appellants sold to the respondent.
The appeal is scheduled to be heard by this Court on 12 February 2024. The Court is likely to deliver judgment within three months of the date of the hearing of the appeal.
In determining whether or not to grant a stay under r 12(3), the Court must balance the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”.[4] Factors to be taken into account in this balancing exercise include:[5]
(a)whether the appeal may be rendered nugatory by the lack of a stay;
(b)the bona fides of the applicant as to the prosecution of the appeal;
(c)whether the successful party will be injuriously affected by the stay;
(d)the effect on third parties;
(e)the novelty and importance of questions involved;
(f)the public interest in the proceeding; and
(g)the overall balance of convenience.
[4]Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.
[5]Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11] citing Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9].
While that list does not include the apparent strength of the appeal, that has been treated as an additional factor.[6]
[6]Body Corporate No 188529 v North Shore City Council (No 6) HC Auckland CIV-2004-404-3230, 11 February 2009 at [17].
The appellants contend that the respondent is in a precarious financial position and that if the application to stay execution is not granted the appellants’ appeal will be rendered…

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.

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Details

Case: [2023] NZCA 642
Decision Date: 14 December 2023 at 9.30 am

CaseChat Overview and Summary

In the case of Weine v Tadd Management Limited, the appellants, Ruth Renton Weine and Michael David Hofmann-Body as trustees of the Ruth Weine Family Trust, sought a stay of the execution of a High Court decision and related costs orders against them. The High Court had ordered the appellants to pay damages of $609,842.20 plus interest and costs to the respondent, Tadd Management Limited, following a finding that the appellants had misrepresented the seismic assessment rating of a building they sold to Tadd Management. The appellants filed an appeal from this decision, which was scheduled to be heard on 12 February 2024. They applied to the Court of Appeal for a stay of execution of the High Court judgment and costs orders pending the outcome of the appeal. The primary issues before the Court of Appeal were whether the appeal might be rendered nugatory without a stay and whether the balance of convenience favoured granting the stay. The Court found that the appellants had demonstrated that their appeal would not be rendered nugatory as Gillespie Young Watson, a law firm, had given an irrevocable undertaking to hold sufficient funds in trust to meet any judgment award plus interest and costs should the appeal be unsuccessful. Additionally, the Court noted that the appeal was scheduled to be heard very soon and was likely to be determined expeditiously. Taking into account the overall balance of convenience and the interest of justice, the Court granted the application for a stay of execution.

The Court of Appeal considered various factors in deciding whether to grant the stay, including the apparent strength of the appeal, the financial position of the respondent, and the potential injury to the respondent if a stay were granted. The Court noted that the appeal was scheduled to be heard shortly and was likely to be determined within a reasonable timeframe. Given these circumstances, the Court concluded that the overall interests of justice were best served by granting the stay. The Court acknowledged that the respondent was in a precarious financial position, but balanced this against the appellants' ability to ensure that any judgment awarded by the High Court would be met if the appeal was unsuccessful. The Court also took into account the likely expeditious determination of the appeal, which would help to preserve the position of the parties pending the outcome of the appeal. In light of these considerations, the Court granted the application for a stay of execution of the High Court judgment and costs orders.

Orders