FRANCIS HONE CLARK & ANOR v [2005] NZCA 61 (6 April 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA52/05

BETWEEN FRANCIS HONE CLARK
Applicant

AND PUBLIC TRUST
Respondent

Hearing: 6 April 2005

Court: Anderson P, Hammond and William Young JJ

Counsel: J E Dorbu for Appellant
A R Gilchrist for Respondent

Judgment: 6 April 2005

JUDGMENT OF THE COURT

A The application is dismissed.

B The applicant is to pay the respondent costs of $1,500 plus disbursements as fixed by the Registrar.

REASONS

(Given by Anderson P)

[1]	This is an application brought urgently by Mr Francis Hone Clark for an interim stay of a writ of execution of sale in respect of a property owned and occupied by Mr Clark’s parents, Mrs Ngaire Clark and Mr Graham Clark.
[2]	Following an application for stay in the High Court at Auckland Venning J on 4 April 2005 granted a stay on conditions. These are set out in Venning J’s judgment at paragraph 11 as follows:

a) The wasted costs incurred in the course of the sale process, being the costs of the agents instructed by the Registrar which the plaintiff Public Trust has given an indemnity to pay are to be paid by the appellant as a condition of the stay. Those costs total $3,888.75. That sum is to be paid to the Registrar of this court by 4.00 p.m. tomorrow, 5 April 2005.
b) The costs of this application are to be fixed on a 2B basis and are to be paid by the appellant, Mr Clark.
c) Security for costs for the appeal is fixed in the sum of $4,250.00.
d) The appeal is to be prosecuted with all due expedition, including –

•	The security for costs as fixed at $4,250.00 is to be paid within 14 days of the appeal being lodged.
•	Points on appeal and case on appeal is to be filed by 29 April 2005.
•	A fixture is to be applied for no later than 2 May 2005.
[3]	The execution of the writ is imminent. The property is expected to come up for sale in 10 minutes time, hence the urgent convening of this Court to deal with Mr Clark’s application.
[4]	Mr Dorbu submits, in essence, that the financial conditions, particularly that appearing in para 11(a) of Venning J’s judgment, are such as to render the benefits of the stay order nugatory. That is because neither Mr Clark nor his parents, it seems, are in a position to raise the sum of $3,888.75 which was due to have been paid into the Auckland High Court at 4 p.m. yesterday.
[5]	For the Public Trustee, Mr Gilchrist submits that the application for stay was brought at the eleventh hour when it could well have been brought earlier and that the provision for wasted costs is entirely reasonable and understandable having regard to the dilatory nature of the stay application.
[6]	This Court has considered the matter and is conscious that Venning J was well placed to obtain a feel for the general tenor of this litigation. He has, in effect, exercised a discretion which this Court could not interfere with unless it was satisfied that the exercise of such discretion was plainly wrong. We are not so satisfied, with the result that the present exigent application for an order of the stay by this Court must be and is dismissed, with costs to the Public Trustee of $1,500 plus disbursements as fixed by the Registrar.

Solicitors:
Tua Mose Saseve, Auckland for Appellant
Rowse Partners, Wellington for Respondent