Wootton v Wootton

[2020] NZCA 542

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA600/2020
 [2020] NZCA 542

BETWEEN	MARGARET ANN WOOTTON Applicant
AND	PHILLIP GARRY WOOTTON Respondent

Counsel:	Appellant in person E J Collins for Respondent
Judgment: (On the papers)	4 November 2020 at 2.15 pm

JUDGMENT OF COOPER J
 (Application for stay)

AA stay is granted prohibiting removal of the caveats affecting the properties listed at [8] of the High Court judgment.

BThat order is made pending disposition of the appeal or an earlier order of this Court setting aside the stay.

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REASONS

1. On 13 October 2020 Associate Judge Johnston declined an application made by Ms Wootton to sustain caveats.[1]

   [1]Wootton v Wootton [2020] NZHC 2684 [High Court judgment].

2. On 19 October 2020 Ms Wootton filed an application for leave to bring a civil appeal.  On the same day she made an application to this Court for a stay of execution of the High Court judgment. 

3. By a minute dated 22 October 2020, Gilbert J noted that Ms Wootton did not need leave to appeal, as she is entitled to appeal as of right.  With reference to the application for a stay, Gilbert J noted Ms Wootton’s statement in her application for stay that the High Court had declined to grant a stay of proceedings and leave to appeal.  Noting that no judgment to that effect had been produced, Gilbert J directed Ms Wootton to provide a copy of the judgment within seven days.

4. Ms Wootton has filed a document headed “Appellant’s Submissions in Response to Minute of Gilbert J”, dated 28 October 2020.  In it she asserts in effect that she had applied for a stay in advance of the High Court judgment delivered.  This assertion is based on a document which was attached to her submissions, headed “Urgent Interlocutory Application without notice” dated 9 October 2020, evidently filed in the High Court.  That application was referred to by the Associate Judge in the following terms:

   [21]     I mention that since the hearing of this case on 5 October 2020, Ms Wootton has filed a document dated 9 October 2020 headed “Urgent Interlocutory Application without notice of the Applicant for consideration of  new matter in relation to unheard formal application of the 24.9.20 regarding Mr Collins’ removal”.  This is accompanied by an affidavit sworn by Ms Wootton on 8 October 2020 which is said to be in support.  I have read these documents.  I have found it impossible to follow the application.  In any event, I am not prepared to deal with yet another application by Ms Wootton made on an ex parte basis.  If she has an application to make in this proceeding, she must file and serve the same so as to give the respondent, Mr Wootton, an opportunity to have his say.

5. As can be seen the Associate Judge advised that the application was difficult to follow, but I note that at paragraph 1.2 of the application, which the Associate Judge discussed, Ms Wootton did seek a stay.  Although the Associate Judge said he was not prepared to deal with the application unless it was served on the respondent, the point is probably academic because in a memorandum filed in this Court dated 28 October 2020, counsel for Mr Wootton has responded to the application made in this Court. 

6. In the unusual circumstances of this case, I consider the practical course to follow is to proceed to deal with the application on the basis that a stay has effectively been declined by the High Court notwithstanding there is no indication that the application to that Court was served on the respondent, and notwithstanding the Associate Judge said he was not prepared to deal with it.

7. In his memorandum dated 28 October 2020, Mr Collins for Mr Wootton expresses the view that there are no grounds which give rise to a stay.  However, he then indicates the respondent “would consent to the stay” pending the outcome of the appeal on the basis that the appeal is filed within seven days.  I assume his intent is to draw a distinction between a notice of application to appeal and an appeal.

8. However, the Registry has apparently taken the view that the application for leave to appeal should be treated as an appeal.  I too assume that is what Gilbert J intended.  In the circumstances, the reservation which Mr Collins apparently intended to express is ineffective. 

9. The only basis upon which a stay can be granted in the circumstances of this case is that the appeal would be rendered nugatory if the caveats registered on the titles referred to in the High Court judgment were removed. 

10. But that is sufficient, and it is appropriate in the circumstances that a stay be granted prohibiting removal of the caveats affecting the properties listed at [8] of the High Court judgment. I make such an order accordingly.

11. That order is made pending disposition of the appeal or an earlier order of this Court setting aside the stay.

Solicitors:
Collins & May Law, Lower Hutt for Respondent