Valentines Properties Ltd v Huntco Corporation Ltd [2000] NZCA 377; (2000) 15 PRNZ 6 (7 December 2000)

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Valentines Properties Ltd v Huntco Corporation Ltd [2000] NZCA 377 (7 December 2000); (2000) 15 PRNZ 6

Last Updated: 7 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA57/99

	BETWEEN	VALENTINES PROPERTIES LIMITED
		First Appellant

	AND	VALENTINES RESTAURANT & BAR (NZ) LIMITED
		Second Appellant

	AND	HUNTCO CORPORATION LIMITED
		First Respondent

	AND	STEEPLE TRANSPORT HOLDINGS (1993) LIMITED
		Second Respondent

Hearing:	4 December 2000
Coram:	Richardson P Blanchard J McGrath J
Appearances:	R M Dillon for Appellants B A Gibson for Respondents in support
Judgment:	7 December 2000

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

[1] Huntco Corporation Limited and Steeple Transport Holdings (1993) Limited are respondents to an appeal to Her Majesty in Council set down for hearing on 1 February 2001. They have applied to this court for orders amending the terms on which the execution of the judgment in their favour against the appellants, Valentines Properties Limited and Valentines Restaurant & Bar (NZ) Limited, has been suspended. In essence they are seeking further and better security pending the hearing and determination of the appeal.
[2] On 20 March 2000, by consent, the court granted the appellants conditional leave to appeal to the Privy Council on the terms set out in the order, including, relevantly for present purposes:

(c) On or before 20 March, 2000, the appellants secure a letter of credit from a trading bank in the sum of $350,000.00 in favour of the respondents and that such letter of credit be held by the appellants solicitors, Gaze Burt, pending the receipt of advice from the Privy Council as to the appeal or the earlier striking out or abandonment or withdrawal of the same and on the following terms:

(a) In the event that the appeal to the Privy Council is not successful or earlier struck out, abandoned or withdrawn the letter of credit is to be delivered forthwith to the respondents solicitors in partial satisfaction of the judgment of the High Court of New Zealand in this matter;

(b) In the event that the appeal to the Privy Council is allowed the said letters of credit shall be returned forthwith by the appellants solicitors to the appellants and the respondents shall forthwith execute and deliver a deed of release of mortgage of shares of the second appellant dated the 30th day of June, 1999;

(c) Execution of judgment be stayed pending advice from the Privy Council as to the success or otherwise of the appeal or the appeal is struck out, abandoned or withdrawn.

(d) Leave be granted for either party to apply to this Court on two days notice should any issue arise in the course of performing or implementing the foregoing orders.

[3] On 5 May 2000, and again by consent, the court granted final leave to appeal. In support of that application it was recorded that a letter of credit on the appropriate terms had been granted and, by counsel for the respondents, that all the relevant terms of the order for conditional leave had been complied with.
[4] The letter of credit is for $350,000 and its expiry date is 13 March 2001. Judgment was sealed in the High Court in favour of the respondents for $629,068.34 and with interest and costs on the appeal to this court the amount due under the judgment will be some $775,000 when the appeal is heard by the Privy Council on 1 February. In the affidavits filed the respondents allege and the appellants deny that the trading position of the second appellant has worsened to the prejudice of recovery under the judgment if the appeal fails; and the respondents are also concerned that, because the hearing in the Privy Council will be taking place later than the parties expected when the letter of credit was obtained, the present expiry date of the letter of credit may not allow time, or sufficient time after delivery of judgment following the hearing, for its enforcement. Hence this application seeking amending orders that the appellants provide full and adequate security for the judgment to reflect changes in circumstances. Non-compliance with the amending orders, it was submitted, would allow immediate enforcement of the judgment.
[5] As we indicated at the hearing of the application, we consider that in terms of the 1910 Rules (see The Privy Council (Judicial Committee) Rules Notice 1973 (SR 1973/181)) responsibility in relation to the appeal has passed from this court to the Privy Council. Rule 6 empowers this court "when granting leave to appeal" to order that "the execution [of the judgment] shall be suspended pending the appeal, as to the court shall seem just". Rule 19 goes on to provide that "An appellant who has obtained final leave to appeal shall prosecute his appeal in accordance with the Rules for the time being regulating the general practice and procedure in appeals to Her Majesty in Council". Once final leave has been granted the Rules envisage recourse to this court in very limited and specified circumstances: Rule 20, withdrawal of appeal after final leave; Rule 20, failure to show due diligence in taking necessary steps for procuring despatch of the record to England; and Rules 22 and 23, where the record becomes defective by reason of the death or change of status of a party to the appeal.
[6] In short, the Rules reflect the principle that with limited exceptions responsibility for the case passes out of the hands of this court and to the Privy Council after final leave has been obtained. In this case final leave was given on 5 May 2000, at which time it was recorded that the relevant terms of the order for conditional leave had been complied with. There is nothing further to be done in terms of the leave reserved under para (d) of the conditional leave order. The present application is outside the relevant terms of the order made when leave to appeal was granted. The Privy Council is seized of the appeal and a fixture has been made for 1 February 2001, to which both parties intend to adhere. Even if, and contrary to our clear view, we had jurisdiction, we would not make the orders sought which would change the basis on which the stay has operated and the parties have proceeded for seven months and which would, on the respondents' argument, have as the sanction for non-compliance the immediate enforceability of the judgment, with the potential for prejudicing the appellants' ability to maintain the fixture for 1 February 2001.
[7] Counsel at the hearing could no doubt draw Their Lordships' attention to the expiry date of the letter of credit. If any further steps are to be taken before or at the hearing that will be a matter for the parties and their advisers.
[8] For these reasons the application is dismissed. If any questions of costs arise counsel may submit memoranda.

Solicitors
Gaze Burt, Auckland, for appellants
B A Gibson, Wellington, for respondents