Zondag v Zondag HC Hamilton CIV 2003-419-328

[2007] NZHC 2129

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2003-419-328

BETWEEN  HERMANUS JOHANNES GERARDUS ZONDAG

Plaintiff

ANDBERNARDUS CORNELIUS HERMANUS ZONDAG AND MARIA CRISTINA ROSA ZONDAG SNELDERS Defendants

Hearing:         25 September 2007

Appearances: D M O’Neill for Plaintiff

Defendant (B C H Zondag) in Person

Judgment:      25 September 2007

ORAL JUDGMENT OF RANDERSON J

Solicitors:           Miller Poulgrain, PO Box 711, Thames

Counsel:            D M O’Neill, PO box 815, Hamilton

Copy To:           BCH Zondag and MCR Zondag Snelders, 6 Tapu Creek Farms, RD5, Thames

ZONDAG V ZONDAG HC HAM CIV 2003-419-328  25 September 2007

Introduction

[1]      This is an application by the defendants for an order staying the judgment of Nicholson J issued on 19 June 2007.  The defendants have indicated their intention to appeal against all or most of the judgment.

Background Facts

[2]      The background is that there has been a long running dispute between the plaintiff and the defendants over the design and construction of a house property at Tapu near Thames.  The plaintiff and the male defendant are brothers.

[3]      The outcome of Nicholson J’s very lengthy decision covers the following issues relevant for present purposes:

a)       Two boundary adjustments on the northern boundary between two lots, one owned by the plaintiff and the other by the defendants.

b)       An adjustment or amendment of the terms of an easement.

c)       The resolution of a dispute involving $4,400 in relation to remedial work to be carried out in respect of the exterior balustrades of the plaintiff’s property by a sub-contractor named Thames Stainless Limited.

d)       An  order  that  the  defendants  pay  to  the  plaintiff  the  sum  of

$46,151.62  in  respect  of  amounts  said  to  have  been  overpaid  in relation to the construction of the plaintiff’s house.

The Boundary Adjustments and the Easement Issue

[4]      It is clear that since the judgment issued by Nicholson J some three months ago, the transfers necessary to  give effect to  the  boundary adjustments  and  the amendment  of  the  easement  have  not  been  effected  despite  a  good  deal  of

correspondence between the parties.  The sticking points have been a dispute about the costs involved in effecting the transfers and whether or not the plaintiff is obliged to remove a caveat lodged by him simultaneously with the registration of the transfers, or subsequently.

[5]      The defendants have made it clear they are willing to give effect to the transfers leaving the Court of Appeal to decide whether the Judge was correct in his determination that there be no consideration for the transfers or whether there should be (as the defendants contend) some consideration for them.  As well, the Court of Appeal  would  remain  at  liberty  to  deal  with  any  consequential  costs  issues depending on the outcome of the appeal.

[6]      I record that both parties are agreed that the transfers may be effected as soon as possible without prejudice to the remaining issues for the Court of Appeal which I have identified.  Both parties also agree that the transfers will be permanent in the sense that neither will seek to set them aside or alter them once registered.

[7]      During the course of argument this morning, I suggested to the parties that a period of 14 days should be allowed to prepare and register the transfers necessary to effect both the boundary adjustments and the variation to the easement.  It is agreed that the plaintiff’s solicitors will prepare and register the transfers.  I direct that they are to do so within 14 days of today’s date and that all parties do all things necessary to ensure that this occurs, including signing the relevant transfers and any other documents and the plaintiff providing a consent to the registration of the transfers, notwithstanding the caveat.

[8]      It is clear from Nicholson J’s judgment that the caveat is to be removed by the plaintiff after registration of the necessary transfers.  That order remains in force and is to be complied with.  Whether the plaintiff chooses to withdraw the caveat completely at the time of the registration of the transfers is entirely a matter for him. But, as matters stand, all he is obliged to do is to give the necessary consents to enable those transfers to be registered and to withdraw the caveat thereafter.

[9]      As to the issue of costs, there is a very minor dispute in amount between the parties.  The main issue seems to be whether the defendants are entitled to recover costs for the work which Mr Berry Zondag has undertaken himself.  Nicholson J’s judgment makes it clear that the costs which are to be met by the plaintiff in relation to the transfers are only third party costs.   The Judge also made it clear that any dispute over the costs in relation to these transfers was to be dealt with subsequently. If the parties are unable to agree on the very minor difference between them, then it seems to me that the proper venue for resolving any remaining dispute is with the Disputes Tribunal.  The amount involved cannot be more than $1000-$2000 at the most, given that the plaintiff has agreed to pay a substantial part of the costs claimed.

[10]     The overall amount claimed by the defendants for costs is around $7000.

Steel Dispute

[11]     Nicholson J dealt with this issue at [552] to [554] of his judgment.   Two alternatives were provided for, depending on whether an earlier settlement agreed to was, or could be, carried out.   Unfortunately it seems that the company Thames Stainless Limited is no longer in existence and it is accepted that in those circumstances the defendants are obliged to pay to the plaintiff the sum of $4,400 as damages for the faulty steel work.

[12]     The difficulty from the defendants’ point of view is that Nicholson J did not deal specifically in his judgment with the earlier agreement of the plaintiff that he would accept that sum in full settlement of any claims he had against the defendants and that he would indemnify the defendants against any claims by third parties in relation to the faulty steel work by Thames Stainless Limited.

[13]     During the course of the hearing this morning, at my suggestion, Mr O’Neill obtained instructions from the plaintiff and he has agreed to provide a letter to the defendants acknowledging that the amount of $4400 is accepted by the plaintiff in full and final settlement of any claims the plaintiff may have against the defendants arising out of or connected with the faulty steel work by Thames Stainless Ltd and

will also agree to indemnify the defendants against any claim against them by third parties arising from or connected with the same work.

[14]     The sum of $4,400 is to be paid within 14 days of today’s date in exchange for the letter from the plaintiff which I have outlined.

Restitution of $46,151.62

[15]     The  defendants  propose  that  this  sum  be  paid  into  Court  and  placed  on interest bearing deposit.  The plaintiff on the other hand says that he is entitled to the fruits of his judgment pending the appeal and that he has the means and would undertake to repay all or part of that sum depending on the outcome of the appeal.

[16]     He has filed an affidavit in which he deposes to the fact that he owns a house at Te Puru which is a different one from that which is in dispute.  There is evidence that the house at Tapu (over which the dispute arose) is on the market for sale.

[17]     While it seems that both these properties are of substantial value and are said not to be subject to any mortgage, there is an absence of evidence before the Court at this stage which would persuade me that the plaintiff does in fact have the means to repay the amount at issue.

[18]     I propose to allow a brief period to the plaintiff to provide that material to the Court as a condition of the stay order which I propose to make.  It seems to me that, provided the plaintiff is able to demonstrate that he does have the means to repay the amount concerned and is willing to undertake to do that, he should have the fruits of his judgment pending appeal.

[19]     However, I am also proposing to reduce the amount ordered to be paid at this stage by way of restitution by a sum which will take account of the amount which is owed ultimately by the plaintiff to the defendants in relation to the costs of the transfers already discussed.

[20]     In round figures it seems to me that it is appropriate at this stage that the defendants pay to the plaintiff the sum of $40,000 subject to any later adjustment that may be required as a result of the Court of Appeal’s judgment in due course.  It will also be a matter for the parties to agree ultimately on any further adjustments needed to take account of the costs of the transfers once that matter is resolved.

[21]     I order that the judgment of Nicholson J given on 19 June 2007 be stayed (except in relation to those matters which I have identified in this decision relating to the transfers and the Stainless Steel matter) on the following conditions:

a)       The defendants are to pay to the plaintiff or the plaintiff’s solicitors within 7 days of today the sum of $40,000.

b)The plaintiff  is  to  file and  serve an  affidavit  no  later  than  5  pm tomorrow  (26  September)  deposing  to  his  assets  to  the  extent sufficient to satisfy the Court that he has the means to repay the amount of $40,000 depending on the outcome of the Court of Appeal decision and to provide a formal undertaking to the Court to make that repayment if required.

c)       The defendants are to proceed to prosecute their appeal with all due diligence.

d)       The  defendants  are  to  file  and  serve  their  case  on  appeal  by

1 February 2008.

[22]     Leave will be reserved to any party to apply further.  Nicholson J has not yet delivered his costs judgment and it may be that one party or the other will seek a stay in relation to any such order.

[23]     Leave is reserved therefore to cover that issue and any others that may arise in consequence of the orders I have made today.

[24]     I reserve the question of costs in respect of today’s application.

A P Randerson, J Chief High Court Judge