Wilfred v Gan

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.

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REASONS OF THE COURT

(Given by Miller J)

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.
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.
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.
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.
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.
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

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Wilfred v Gan was heard by Ellen France, French and Miller JJ. The dispute involved Harmon Lynn Wilfred, Carolyn Dare Wilfred, Angela Marie Smalley, La Famia No 1 Limited, and La Famia No 4 Limited, who were the appellants, and Kaiwan Gan and Yuzhen Yu, who were the respondents. The central issue was the termination of the lease of a property known as Wigram Manor in Christchurch and the repossession of the property, which had been granted to the respondents by an interim relief application. The appellants sought a stay of the Court’s judgment from 4 October 2013, arguing that without a stay, they would suffer irrecoverable harm.

The legal issues before the Court included whether the appellants had grounds to justify a stay of the judgment, and if the potential personal bankruptcy of one of the appellants was sufficient cause for a stay. The Court examined previous decisions and noted that the property had been sold to a third party, which would likely preclude any possibility of relief being granted. The Court also considered the principle that a company should be represented by a solicitor in legal proceedings. The Court concluded that the appellants had not provided sufficient grounds to justify a stay, and dismissed the application for an interim order.

The Court ordered that the appellants, jointly and severally, must pay the respondents costs calculated as for a standard application on a band A basis and usual disbursements. This decision followed the precedent set by the Court in a previous ruling, where it was held that a solicitor should represent a company in legal proceedings. The Court did not find the risk of personal bankruptcy to be a valid reason for granting a stay. The Court also noted that if the High Court deemed it appropriate, an application for an order of adjudication in bankruptcy could be adjourned pending the hearing of the leave application. The Court’s final orders were that the application for a stay was dismissed, and the appellants were required to pay costs to the respondents.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established