Wilfred v Gan

IN THE COURT OF APPEAL OF NEW ZEALAND

CA184/2013
[2013] NZCA 295

BETWEEN

HARMON LYNN WILFRED
First Appellant

CAROLYN RUTH DARE-WILFRED
Second Appellant

ANGELA MAREE SMALLEY
Third Appellant

LA FAMIA NO 1 LIMITED
Fourth Appellant

LA FAMIA NO 4 LIMITED
Fifth Appellant

AND

KAIWAN GAN AND JUZHEN YU
Respondents

Court:

O’Regan P, Ellen France and Wild JJ

Counsel:

H L Wilfred in person
S Caradus and B D A Collins for Respondents

Judgment:

(On the papers)

9 July 2013 at 11 am

JUDGMENT OF THE COURT

AThe application for a stay pending an application for leave to appeal to the Supreme Court is declined.
BThe appellants, jointly and severally, must pay the respondents $500 costs and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

On 2 July 2013 we declined an application for a stay[1] pending appeal of a judgment of Chisholm J making an interim order granting the respondents immediate possession of a property known as Wigram Manor owned by the respondents. A stay made in the High Court had been in place until it was discharged after the appellants ceased to meet one of the conditions for that stay, namely, payment of the rental.[2] After discharge of the stay by the High Court, the respondents re-entered the property.
[1]Wilfred v Gan [2013] NZCA 285.
[2]Gan v Wilfred [2013] NZHC 1508.
The appellants have filed a further application for a stay pending a decision on their application for leave to appeal to the Supreme Court against our decision declining the stay.
We have considered the written material advanced in support of the application and in opposition from the respondents. We are satisfied that the considerations that led us to decline the initial application for a stay[3] apply with the same force to the present application. The application is accordingly declined.
[3]Wilfred v Gan, above n 1, at [29]–[32].
The respondents seek costs. Costs should follow the event. We order the appellants, jointly and severally, to pay the respondents $500 costs and usual disbursements.

Solicitors:
Duncan Cotterill, Christchurch for Respondents

CaseChat Overview and Summary

In Wilfred v Gan, the Court of Appeal of New Zealand considered an application for a stay pending an appeal to the Supreme Court. The appellants, including Harmon Lynn Wilfred, Carolyn Ruth Dare-Wilfred, Angela Maree Smalley, La Famiia No 1 Limited, and La Famiia No 4 Limited, sought to stay an interim order granted by Chisholm J, which had allowed the respondents, Kaiwan Gan and Juzhen Yu, immediate possession of a property known as Wigram Manor. This property was owned by the respondents. The initial stay, which had been in place, was discharged by the High Court after the appellants failed to meet the condition of payment of rental.

The legal issues before the Court of Appeal involved whether the initial refusal to grant a stay should be upheld in light of the appellants' subsequent application for a stay pending a leave to appeal to the Supreme Court. The Court needed to determine if the reasons for declining the initial stay applied equally to the second application. Additionally, the Court had to decide on the appropriate costs to be awarded to the respondents in light of the declined application.

The Court of Appeal, comprising O’Regan P, Ellen France, and Wild JJ, declined the appellants' application for a stay. The Court found that the considerations that led to the initial refusal of a stay remained valid and equally applicable to the current application. The Court further ordered that the appellants, jointly and severally, pay the respondents $500 in costs and the usual disbursements. The reasoning was based on the consistency of the circumstances surrounding the initial and current applications for a stay, and the appellants' failure to meet the conditions set for the stay.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established