Wilfred v Gan

[2013] NZCA 544

IN THE COURT OF APPEAL OF NEW ZEALAND

CA184/2013
[2013] NZCA 544

BETWEEN

HARMON LYNN WILFRED
First Appellant

CAROLYN DARE WILFRED
Second Appellant

ANGELA MARIE SMALLEY
Third Appellant

LA FAMIA NO 1 LIMITED
Fourth Appellant

LA FAMIA NO 4 LIMITED
Fifth Appellant

AND

KAIWAN GAN AND YUZHEN YU
Respondents

Court:

Ellen France, French and Miller JJ

Counsel:

Appellant in person
S Caradus and BDA Collins for Respondents

Judgment:

(On the papers)

6 November 2013 at 10.00 am

JUDGMENT OF THE COURT

AThe application for an interim order under r 30(2) of the Supreme Court Rules 2004 is dismissed.

BThe appellants, jointly and severally, must pay the respondents costs calculated as for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. Mr Wilfred has applied, ostensibly as acting counsel for all of the appellants, for a stay[1] of this Court’s judgment of 4 October 2013.[2]  It is not the first application for a stay.  On 2 July, and again on 9 July, we declined a stay pending appeal.[3]  On the 26th of July the Supreme Court dismissed an application for leave to appeal from the stay decision of 2 July, and refused a stay.[4]

   [1]Supreme Court Rules 2004, r 30(2).

   [2]Wilfred v Gan [2013] NZCA 457.

   [3]Wilfred v Gan [2013] NZCA 285 [Wilfred – 2 July] and Wilfred v Gan [2013] NZCA 295.

   [4]Wilfred v Gan [2013] NZSC 75.

2. We do not intend to review the earlier decisions.  It suffices to say that the claim concerned the termination of the lease of a property in Christchurch known as Wigram Manor, repossession of which was granted to the respondents on an application for interim relief.  This Court held, agreeing with Chisholm J, that the appellants faced major problems in obtaining relief.

3. An application for leave to appeal has now been brought in the Supreme Court.  The present application for a stay is brought to “preserve the status quo”, and on the footing that without a stay irrecoverable harm would be suffered.

4. We do not agree.  We will not rehearse the reasons given in previous decisions.  We do add that Wigram Manor has now been sold to a third party, which would likely preclude any possibility of relief being granted.

5. Mr Wilfred has emphasised that he risks personal bankruptcy arising from his liability for costs.  That consideration does not justify a stay, however.  If the High Court thinks it appropriate, an application for an order of adjudication in bankruptcy may be adjourned pending the hearing of the leave application.

6. For the current application, the respondents, having succeeded, are entitled to costs.  We note that the usual position is that a solicitor must act for a company in the conduct of a proceeding.[5]  However, for the purposes of the costs on this application, and given the approach adopted by this Court on 2 July,[6] we order the appellants, jointly and severally, to pay costs to the respondents calculated as for a standard application on a band A basis and usual disbursements.

   [5]Re GJ Mannix Ltd [1984] 1 NZLR 309 (CA).

   [6]See Wilfred – 2 July at [55]–[56].

Solicitors:
Duncan Cotterill, Christchurch for Respondents