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

1. 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)].

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].

3. 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.

4. 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.

5. 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].

6. 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].

7. 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 nugatory.

8. There are two reasons why the Court will grant the application for stay of execution of the judgments in question:

   (a)First, the second-named appellant is a partner in Gillespie Young Watson.  Gillespie Young Watson is holding on trust $1.5 million for the appellants.  Gillespie Young Watson have given an irrevocable undertaking to hold sufficient funds in trust to meet any judgment award plus interest and costs should the appeal be unsuccessful.

   (b)Second, the appeal is scheduled to be heard very soon and is likely to be able to be determined expeditiously.

9. In these circumstances, the Court is satisfied that the overall interests of justice justify the granting of the application for stay of execution.

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Appellants
Braun Bond & Lomas, Hamilton for Respondent