Wilfred v Gan - [2013] NZCA 285

IN THE COURT OF APPEAL OF NEW ZEALAND

CA184/2013
[2013] NZCA 285

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

Hearing:	2 July 2013 (by telephone)
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:	2 July 2013 at 11.35 am
Reasons:	4 July 2013

JUDGMENT OF THE COURT

AThe application for an interim order under r 12(3) of the Court of Appeal (Civil) Rules 2005 is dismissed.
BThe appellants, jointly and severally, must pay the respondents costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

The appellants sought a stay pending appeal of a judgment of Chisholm J in which the Judge made an interim order granting the respondents immediate possession of a Christchurch property known as Wigram Manor, which is owned by the respondents.[1] The stay application was opposed. After hearing from the parties, we declined to grant a stay. These are our reasons for that decision.

Background

[1]Gan v Wilfred [2013] NZHC 535.

We first discuss the facts and the procedural background to the stay application.

The leasing arrangements for Wigram Manor

The judgment of Chisholm J granting interim relief describes the relevant arrangements and we adopt the Judge’s description of the key matters.[2]
[2]At [6]–[12].
On 7 July 2009, the respondents entered into a lease with La Famia No 2 Ltd in relation to Wigram Manor. Chisholm J described that lease as the “head lease” and we do the same. The head lease was for a term of five years with a right of renewal. The annual rental of $150,000 plus GST was payable by monthly payments of $12,500 plus GST. The head lease provided that there was to be no subletting and there were no guarantees.
In 2011, La Famia No 1 and La Famia No 4 (the fourth and fifth appellants) entered into subleases of part of the premises. As Chisholm J said, the term “sub‑lease” has to be used in a loose sense in this context.[3]
[3]At [7]. There is a conflict over whether the respondents were aware of the sub-leases although Chisholm J said it was clear there was no formal consent by the respondents to the sub-leases.
We interpolate here that Mr Harmon Wilfred, the first appellant, and Mrs Carolyn Dare-Wilfred (the second appellant) are, relevantly, directors of La Famia No 1, No 2 and No 4. Ms Angela Smalley, the third appellant, is a director of La Famia No 1 and No 2. Amongst other things, the Manor has been used for accommodation and as a function centre. In addition, some charitable work is done there.
In mid-2012, the rental fell into arrears. In September of that year the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilfred v Gan

Details

AGLC: Wilfred v Gan [2013] NZCA 285
Case: [2013] NZCA 285
Decision Date: 2 July 2013 at 11.35 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was called upon to determine an application for an interim stay of the enforcement of a High Court judgment in the case of Wilfred v Gan. The respondents, Kaiwan Gan and Juzhen Yu, sought possession of a Christchurch property known as Wigram Manor, which was subject to a lease with La Famia No 2 Limited, a company associated with the appellants. The High Court granted the respondents' application for interim relief, ordering immediate possession of the property, a decision that the appellants sought to appeal. The central issue before the Court of Appeal was whether to grant a stay pending the outcome of the appeal.

The Court of Appeal considered various factors in deciding the stay application, including the adequacy of damages as a remedy, the financial situation of the appellants, and the effect on third parties. The Court noted that the appellants had initially obtained a stay on the condition that they would pay the rent, but had subsequently stopped making payments, attributing this to the condition of the building and the ongoing litigation. The Court emphasised that the appellants sought to remain in possession without paying any rent, which would adversely impact the respondents. The Court found that the balance of convenience weighed strongly against granting a further stay, particularly in light of the respondents' re-entry into the property and the adverse impact on third parties. The Court also highlighted the apparent strength of the appeal and the novelty and importance of the questions involved, but concluded that these factors did not outweigh the adverse impact on the respondents.

The Court dismissed the application for an interim stay and ordered the appellants to pay the respondents' costs for the application. The Court noted that Mr. Wilfred, one of the appellants, would be allowed to make submissions on behalf of all appellants, but clarified that a solicitor must typically act for a company in legal proceedings. The Court emphasised that the forthcoming hearing of the appeal would consider the written submissions from the appellants' former solicitors, in addition to those from Mr. Wilfred.

Orders