West v West

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-002992 [2018] NZHC 2787

BETWEEN
ALLAN JACK WEST

Plaintiff

AND

GEOFFREY ALLAN WEST First Defendant

DAVID JOHN CAMERON WEST Second Defendant

THE PARTNERS OF LANGLEY TWIGG LAW

Third Defendant

Hearing: 25 October 2018 (by telephone)

Appearances:

No appearance from Plaintiff
DM Kerr for First and Second Defendant

Judgment:

29 October 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 29 October 2018 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Bannister & von Dadelszen, Hastings. Hesketh Henry, Auckland.
DM Kerr, Napier.

Copy to: Plaintiff

WEST v WEST [2018] NZHC 2787 [29 October 2018]

[1] In 2014, Jack West transferred his Auckland property to his two adult sons, David and Geoffrey. In 2016, Jack claimed the property should be returned because the transfer constituted an unconscionable bargain, and was the product of undue
influence. In 2017, I heard—and dismissed—Jack’s claim.1 Jack has appealed to the

Court of Appeal. He seeks a stay pending appeal.2 Geoffrey and David oppose the application. The third defendant, Langley Twigg Law, abides.

[2] It is not clear why Jack seeks a stay. Jack dismissed his barrister late in the

case and remains self-represented. Jack’s submissions in support of the stay assert trial error. That, however, is a matter for the Court of Appeal.

[3] A stay is unnecessary. My judgment was declaratory; it did not disturb the status quo. Jack continues to live at the property. By the terms of the transfer, he may do so for as long as he wishes. And, Jack’s potential interest remains protected by a caveat. Geoffrey and David agree the caveat may remain in force until Jack’s appeal is determined.

[4] The application is dismissed.

[5] Geoffrey and David seek 2B costs. I award them because the application was unsuccessful. And, without merit.

……………………………..

Downs J

1 West v West [2017] NZHC 3110.
2 High Court Rules 2016, r 12. The hearing was by telephone; see Minute (No 5) of 31 August
2018. Edwards J heard another application by Jack this way earlier this month; see [2018] NZHC 2723. Jack did not answer the phone, as foreshadowed in his email to the Registry of 24 October. By email the next day, Jack said he would await the decision.

CaseChat Overview and Summary

In the case of West v West, the plaintiff, Allan Jack West, brought an appeal against the decision made in 2017 by Downs J, which dismissed his claim that the transfer of his Auckland property to his two sons, David and Geoffrey, constituted an unconscionable bargain and was the result of undue influence. Allan Jack West sought a stay pending appeal, which was opposed by Geoffrey and David, the first and second defendants, respectively. The third defendant, Langley Twigg Law, did not take a position on the matter.

The primary legal issue before the court was whether a stay should be granted to the plaintiff pending his appeal to the Court of Appeal. The court considered the nature of the appeal, the reasons for the stay, and the impact of the stay on the parties involved. The court also assessed the circumstances of the case, including the fact that Allan Jack West had dismissed his barrister late in the proceedings and was self-represented, and that his submissions in support of the stay focused on trial error, which was a matter for the Court of Appeal.

The court determined that a stay was unnecessary as the previous judgment was declaratory and did not disturb the status quo. Allan Jack West continued to live at the property, and his potential interest was protected by a caveat that the defendants agreed would remain in force until the appeal was determined. The court found that the application for a stay was without merit and dismissed it. Furthermore, the court awarded costs to Geoffrey and David for the unsuccessful and unmeritorious application.

In conclusion, the court dismissed Allan Jack West's application for a stay pending appeal and awarded costs to Geoffrey and David. The decision reinforces the importance of assessing the necessity of a stay on a case-by-case basis and the consideration of factors such as the nature of the appeal, the reasons for the stay, and the impact on the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	25 October 2018 (by telephone)
Appearances:	No appearance from Plaintiff DM Kerr for First and Second Defendant
Judgment:	29 October 2018