Whakaruru v Bath

[2023] NZHC 3796

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2387

[2023] NZHC 3796

BETWEEN

ANNA KATARAINA WHAKARURU and SONNY MARUPO WHAKARURU as
trustees of the SONNY AND ANNA WHAKARURU FAMILY TRUST

Plaintiffs

AND

JAY BATH

Defendant

Hearing:

On the papers

Appearances:

J Loh for the Plaintiffs

T Nelson for the Defendant

Judgment:

20 December 2023

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

[Stay and Costs]

This judgment was delivered by me on 20 December 2023 at 10 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Inder Lynch Solicitors, Manukau Bankside Chambers, Auckland

WHAKARURU v BATH [2023] NZHC 3796 [20 December 2023]

Introduction and background

[1]                  In my judgment dated 11 September 2023 I granted summary judgment to the plaintiff in this matter. The defendant filed a notice of appeal in the Court of Appeal on 26 September 2023. An application for a stay of execution pending the appeal was filed on 22 November 2023 together with an affidavit of the defendant, Jay Bath, in support, filed on the same date. I issued a minute on 23 November 2023 directing an interim stay and for the plaintiff to either file a notice of opposition or a memorandum proposing directions in respect of the stay application.

Stay and costs on summary judgment application

[2]                  The plaintiffs filed a memorandum on 6 November 2023 confirming that after reviewing the defendants’ stay application, affidavit and documents filed in support, the plaintiffs are not opposed to the stay until the final determination of Mr Bath’s appeal on the conditions proposed at paragraphs [1](a) to (d) of his application.

[3]                  One of the conditions of the stay is that the defendant pays any costs award made in favour of the plaintiffs in respect of the summary judgment application.

[4]                  The defendant confirmed in his memorandum dated 14 November 2023 that he does not oppose the quantum of 2B costs and disbursements sought in the plaintiff’s costs memorandum dated 10 November 2023. I therefore make orders by consent below for a stay of execution and in respect of costs on the summary judgment application.

Costs on stay application

[5]                  The defendant originally sought costs on the stay application filed. Whilst consenting to the stay, the plaintiffs oppose any award of costs to the defendant for the application. The defendant has not amended his position following the plaintiffs’ memorandum. I therefore include directions for the filing of costs memoranda if the defendant still pursues costs.

[6]                  I indicate that my preliminary view is that the stay is an indulgence for the defendant’s benefit and so no costs ought to be awarded in respect of the stay

application. If that is not accepted by the defendant, and if costs cannot otherwise be agreed, then memoranda may be filed as directed below.

Orders

[7]By consent I order:

(a)the execution of this Court’s judgment in Whakaruru v Bath [2023] NZHC 2474 is stayed until the final determination of Mr Bath’s appeal in the Court of Appeal (CA 562/2023) on condition that:

(i)Mr Bath pays costs on a 2B basis to the plaintiff in respect of the summary judgment application in the amount of $14,698.50 plus disbursements of $1,400 for a total of $16,098.50 within 10 working days of this order;

(ii)Mr Bath deposits security of $200,000 into his solicitor’s trust account, to be held pursuant to irrevocable instructions and a related undertaking not to distribute the funds:

1.       until final determination of the appeal (CA 562/2023);

2.       further to agreement of the parties; or

3.       pursuant to a court order;

(iii)Mr Bath undertakes that up to a maximum overall amount of

$230,604 (the balance of the judgment sum):

1.       if the property at 6 Sealord Place, Manurewa, is sold prior to the final determination of his appeal, Mr Bath will deposit his half of the net sale proceeds into his solicitor’s trust account to be held under the same undertakings outlined above; and/or

2.       if the property at Monument Road is sold by Red Fox Family Limited prior to the final determination of his appeal, Mr Bath will procure that company to pay him half of the net sale proceeds, which he will deposit into his solicitor’s trust account to be held under the same undertakings outlined above;

(iv)Mr Bath prosecutes his appeal with reasonable diligence;

(b)leave is reserved to the parties to apply for further directions by memorandum; and

(c)if costs are still sought on this application, memoranda of no longer than three pages (excluding schedules) may be filed on behalf of the defendant  by  2 February 2023  and on behalf  of the plaintiffs by  16 February 2023.

Associate Judge Sussock