ROBERT GARY HIRST AND HELEN MAY & ANOR v GEORGE VOUSDEN AND GLENNYS & ANOR [2002] NZCA 271 (19 August 2002)

IN THE court of appeal of new zealand

ca25/02

	between	ROBERT GARY HIRST and HELEN MAY HIRST
		Appellants

	AND	GEORGE vousden AND GLENNYS VOUSDEN
		Respondents

Hearing:	19 August 2002
Coram:	Blanchard J Tipping J Glazebrook J
Appearances:	F B Bolwell for Appellants M J Koppens for Respondents
Judgment:	19 August 2002
Reasons for Judgment:	5 September 2002

REASONS FOR judgment of the court delivered by GLAZEBROOK J

Introduction

[1] By judgment dated 19 August 2002 the appellants were given conditional leave to appeal to Her Majesty in Council on the usual conditions. The Hirsts' application for a stay of execution of judgment was refused and it was directed that the judgment be carried into execution subject to Mr and Mrs Vousden entering into good and sufficient security, to the satisfaction of the Court, for the due performance of such order as her Majesty in Council shall think fit to make thereon. It was stated that written reasons for refusal of the stay of execution would be given. These are those reasons.

Background

[2] This matter arose out of a dispute between the lessors and lessees of a takeaway bar and accommodation business at Waipu Cove.Mr and Mrs Vousden obtained judgment for $80,000 plus costs in the High Court.In this Court the appeal was dismissed and a cross-appeal against quantum allowed, increasing the damages to $91,500 plus costs.By 21 June 2001 the total figure due to the Vousdens for damages, costs and interest was $139,808.

Arguments of the parties

[3] Mr and Mrs Hirst ask for a stay on the grounds of hardship claiming that payment of the judgment debt would require sale of the Waipu Cove property, which is uniquely advantaged and, given the rising prices of coastal land, would not be able to be replaced. The property was purchased for their retirement.

[4] Mr and Mrs Vousden on the other hand submit that relatively speaking they suffer from greater financial hardship. In addition their lawyers, who have carried the costs of the proceeding for some twelve months, now require payment.

Financial position of the parties

[5] In terms of the relative financial positions of the parties the Court has limited information on Mr and Mrs Vousden but they own one property only, which is said to be encumbered and of modest value.

[6] Mr and Mrs Hirst on the other hand own three properties - two in Auckland as well as the property at Waipu Cove. The Waipu Cove property has a government valuation of $360,000. The first Auckland property (being the family home) has a government valuation of $179,000. The second is a small factory in Penrose with a government valuation of $200,000. The factory has been on the market for some time but has only been tenanted for the last 6 months. The Hirsts have a loan from the ASB of $190,000 secured against the two Auckland properties.

[7] Mrs Hirst is unemployed but Mr Hirst is on a salary of $45,000 plus commission. He has earned little or no commission to date, however. The Waipu Cove business is not operating at present but will probably be operated over the summer period, which is in any event the season where the bulk of earnings occur.

Discussion

[8] Rule 6 of the New Zealand (Appeals to the Privy Council) Order 1910 states as follows:

Where the Judgment appealed from requires the Appellant to pay money or perform a duty, the Court shall have power, when granting leave to appeal, either to direct that the said Judgment shall be carried into execution or that the execution thereof shall be suspended pending the Appeal, as to the Court shall seem just.And in case the Court shall direct the said Judgment to be carried into execution, the person in whose favour it was given shall, before the execution thereof, enter into good and sufficient security, to the satisfaction of the Court, for the due performance of such Order as His Majesty in Council shall think fit to make thereon.

[9] The decision to suspend or order execution depends on the Court's assessment of what is just in the circumstances.It would seldom be just to deprive successful litigants of the fruits of their success without special reasons.

[10] In this case the judgment relates merely to a payment of money. If, as is required by the Rule 6, adequate security is given for the due performance of any payment ordered against Mr and Mrs Vousden by Her Majesty in Council Mr and Mrs Hirst's appeal right is not rendered nugatory. Given the financial situation of the Vousdens it is true that Mr and Mrs Hirst may find, if successful, that the Vousdens will not be able to meet in full any award of costs but the concern of Rule 6 is with repayment of the judgment sum, not with ensuring that costs will be paid.In any event, whether or not execution of the judgment is ordered, the Hirsts are likely to be in the same position as regards costs if successful.This then provides no special reason why execution should not be ordered.

[11] We can understand Mr and Mrs Hirst's concern at the prospect of having to sell the Waipu Cove property in order the meet the judgment (and presumably also to fund the appeal).We do point out, however, that the Waipu Cove property may not in fact need to be sold.The Hirsts have other sources of funds - either through short-term borrowings or through sale of the factory (even if that may need to be at a current market price which may be lower than government valuation).We note too that the financial position of the Hirsts is comfortable and significantly superior to that of the Vousdens.

[12] All of the above led us to the view that it is just in the circumstances that execution of the judgment should be ordered (as it was on 19 August 2002).

Conclusion and Costs

[13] Costs of $2500 are ordered in favour of Mr and Mrs Vousden, plus disbursements (including travel and accommodation expenses) to be set by the Registrar if necessary.

Solicitors:

Kendall Strong, Auckland for Appellants

Wynyard Wood, Auckland for Respondents