Willigers v Churchill Fishing International Limited

[2020] NZHC 2212

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2020-406-26

[2020] NZHC 2212

UNDER

the High Court Rules 2016 and the Residential Tenancies Act 1986

IN THE MATTER

of an appeal against a decision of the District Court decision dated 17 August 2020

BETWEEN

TERRY RONALD WILLIGERS

Applicant

AND

CHURCHILL FISHING INTERNATIONAL LIMITED

Respondent

Hearing:

27 August 2020

Appearances:

G J Haszard for the Applicant

J Moss and G Davis for the Respondent

Judgment:

27 August 2020

ORAL JUDGMENT OF COOKE J

[1]    By application dated 19 August 2020 the applicant has applied for a stay of the orders made by the District Court on 17 August 2020 dismissing his appeal from a decision of the Tenancy Tribunal. The application is supported by an affidavit of the applicant affirmed on 20 August 2020. The orders are opposed by the respondent and an affidavit of Mr Terry Brown, affirmed on 26 August 2020 has been provided in opposition. The application was first referred to me as Duty Judge and after convening a telephone conference on Monday 24 August 2020 I gave directions for the filing of submissions and other papers so that the matter could be heard today.

WILLIGERS v CHURCHILL FISHING INTERNATIONAL LIMITED [2020] NZHC 2212 [27 August 2020]

Background

[2]    I describe the circumstances in only brief form. I note that Mr Willigers disputes matters set out in Mr Brown’s affidavit and that Ms Haszard sought an opportunity to file evidence in reply if the Court was to rely on Mr Brown’s affidavit. As I observed, however, the Court needs to make its decision on the evidence before it.

[3]    Mr Brown says that he has known Mr Willigers for 20 years. He says that in 2017 he decided to attempt to assist Mr Willigers in dealing with this rehabilitation from drug use by allowing him and his family to live in his house in Picton, being the property now owned by the respondent.

[4]    Matters have since deteriorated. Mr Willigers’ wife and children have left, although  Mr  Willigers’  new  partner  and  her  baby  now  live  at  the   property. Mr Willigers has not been paying rent. It is also apparent from the evidence that the property has been in a dilapidated state. It is not insured. The respondent now wants Mr Willigers to leave.

[5]    The respondent made an application to the Tenancy Tribunal for possession on the basis that Mr Willigers was a squatter. On 8 November 2019 the Tribunal granted possession. Mr Willigers then applied for a rehearing, and that was declined by the Tribunal on 9 December 2019.

[6]    Mr Willigers then appealed that decision to the District Court. That appeal was dismissed by Judge Barkle by judgment dated 17 August 2020.1 It is this decision that Mr Willigers seeks to appeal. Significantly Judge Barkle determined that the stay that had been in place pending the outcome of the appeal was lifted “and that immediate possession of the property vests in Churchill Fishing”.2

[7]    There have been other steps taken including the issue of caveats and trespass notices but they are not directly relevant in the current application. In addition I note

1      Willigers v Churchill Fishing International Ltd [2020] NZDC 15372.

2 At [40].

that Mr Willigers has High Court proceedings alleging that he is entitled to a percentage interest in the property by way of resulting trust.

Relevant principles

[8]There is no dispute as to the principles to be applied in relation to a stay. Rule

20.10 of the High Court Rules 2016 provides:

20.10   Stay of proceedings

(1)An appeal does not operate as a stay—

(a)of the proceedings appealed against; or

(b)of enforcement of any judgment or order appealed against.

(2)Despite subclause (1), the decision-maker or the court may, on application, do any 1 or more of the following pending determination of an appeal:

(a)order a stay of proceedings in relation to the decision appealed against:

(b)order a stay of enforcement of any judgment or order appealed against:

(c)grant any interim relief.

(3)An order made or relief granted under subclause (2) may—

(a)relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:

(b)be subject to any conditions for the giving of security the decision-maker or the court thinks just.

[9]In Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust

the Court of Appeal said:3

[10]    … As a starting point, a successful party is entitled to the fruits of its judgment. An appellant who seeks to stop this must make an application and show why the usual consequences of a judgment should not follow. The court will need to balance the competing rights of the party who has obtained judgment against the need to preserve the appellant’s position in the event of

3      Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZCA 377.

the appeal succeeding.4 The factors to be taken into account in the balancing exercise when a stay or interim order are sought include:5

(a)whether the appeal may be rendered nugatory by the lack of a stay;

(b)the bona fides of the appellant as to the prosecution of the appeal;

(c)whether the successful party will be injuriously affected by the stay;

(d)the effect on third parties;

(e)the novelty and importance of questions involved;

(f)the public interest in the proceeding;

(g)the overall balance of convenience; and

(h)the apparent strength of the appeal.

[10]      Each case is considered on its own circumstances and this list of facts is not exhaustive.6

Application in the present case

[11]      There are three factors in favour of the stay being granted in the present case. The first is that Mr Willigers will be required to leave the place he lives in if the stay is not granted. This will involve a very significant disruption to him. The second factor is that his present partner and her baby presently live with him. There will accordingly be similar significant impact on third parties if the stay is not granted. Thirdly, the absence of a stay may well render the appeal nugatory or at least make it very much less significant. Those three factors suggest that a stay for a short period until the appeal is heard could well be appropriate.

[12]      But there are several other factors that mean the stay is not appropriate in the present case in my view.

4      Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87.

5      See Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9], upheld on appeal in Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (CA). See also Keung v GBR Investments Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].

6      NXP Holdings Ltd v Winc Australia Proprietary Ltd [2019] NZHC 3463 at [45]–[48].

[13]      First the appeal before the Court is a second appeal. There have already been two decisions of the Tenancy Tribunal and one decision of the District Court on the merits of Mr Willigers’ right of occupation and the requirement for him to leave. In terms of the Tribunal, its function is to make the practical assessments of the rights of tenants and landlords and the rights to possession in a prompt way, and it has done so in the present case. Its function in this respect should be respected. The application for a stay cuts across the scheme of the access to the Tribunal under the Residential Tenancies Act 1986.

[14]      Second, the reason why the Tribunal and the District Court are wrong has not been persuasively set out to this Court. Ms Haszard argued that the Tribunal was wrong not to consider the evidence that Mr Willigers had an interest by way of resulting trust in the property. But even if this is established I am unclear why that would give rise to right of possession to the property, certainly possession in the nature of a tenancy. Any claim to an equitable interest will need to be established in the High Court first before the question of equitable remedy is addressed, and I note that only a percentage interest is sought by Mr Willigers. Effective relief could still be granted even if the present claims in relation to possession fail. It is also relevant that a caveat is presently in place and this exists to protect Mr Willigers’ claims to an equitable interest.

[15]      The third factor is that there is no tenancy agreement in place and never has been. The reality is that Mr Willigers is not paying rent. In those circumstances it is difficult to see why he should be granted what is effectively a right to continue to occupy the house at no cost as a consequence of a stay entered by the Court.

[16]      The fourth point is that in Mr Brown’s evidence there is a suggestion that the house is not in a state fit for occupation. The photographs taken in October 2019 suggest that, although it is not accepted that they show the present state the property. In addition Mr Brown’s evidence to the effect that testing has been undertaken at the property and the presence of methamphetamine is very high suggesting that the house has been used for methamphetamine manufacture, if true, is concerning. It is also reasonably well-established that the property is not insured. It may be inappropriate

for the property to be presently occupied. I make no findings to that effect but I recognise that these are important factors to be taken into account.

[17]      Finally, the claims that Mr Willigers makes are that there should be a resulting trust in his favour. But they do not appear to be strong. They are based on an alleged agreement to purchase a share in the property. It is only a claim to an equitable interest of a certain percentage. It does not seem to me that that gives him a right of occupation. That distinguishes the case from the other cases such as Sergeant v Nigro & Anor relied on by Ms Haszard.7 Those cases involved occupants who had been in occupation for longer periods of time and had more obvious connections with the properties in question.

[18]For those reasons the application for stay is dismissed.

Costs

[19]The respondent is to have the costs of this application on a 2B basis.

[20]      Ms Haszard confirmed that the substantive appeal will still be pursued. It should accordingly be case managed in the usual way.

Cooke J

Solicitors:

Lundons Law, Blenheim for the Applicant

Patient & Williams, Christchurch for the Respondents

7      Sergeant v Nigro & Anor [2019] NZHC 902. See also Wall v Gannon HC Rotorua CIV-2006-463- 280, 17 May 2006.