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Mansfield and ors v Tanner and Cousins as executors and trustees of the estate of Rita Cousins [2006] NZCA 267 (25 September 2006)

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Mansfield and ors v Tanner and Cousins as executors and trustees of the estate of Rita Cousins [2006] NZCA 267 (25 September 2006)

Last Updated: 4 October 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA158/06

BETWEEN ALEXANDER WALTER MANSFIELD
First Appellant

AND MANSFIELD DRY CLEANERS AND LAUNDERS LIMITED
Second Appellant

AND ALEXANDER WALTER MANSFIELD AND LORRAINE DIANE MANSFIELD
Third Appellant

AND JOHN WILLIAM TANNER AND DENIS MURRAY COUSINS AS EXECUTORS AND TRUSTEES OF THE ESTATE OF RITA COUSINS
Respondents

Counsel: E W Gartrell for Appellants
A R Davie for Respondents

Judgment: 25 September 2006 at 12.00 noon

JUDGMENT OF O’REGAN J

A stay is granted for the period up to the date of the hearing of the application for special leave to appeal out of time (13 November 2006) on condition that the appellants pay into Court (to the Registrar of this Court) the amount for which judgment was entered in the High Court. Such payment must be made by 1 pm on 2 October 2006.

REASONS

[1] The Registrar has referred to me the appellants’ application for a stay of execution of the judgment of the High Court pending their appeal dated 4 August 2006. Whether there is an appeal will depend on the outcome of their application for special leave to appeal out of time, which I understand will be heard on 13 November 2006.
[2] The judgment subject to the proposed appeal requires the appellants to pay nearly $320,000 to the respondents. There is no reason given for seeking a stay, and as this Court stated in Salem Limited v Top End Homes Limited CA169/05 27 September 2005, the stay should have been sought in the High Court.
[3] In response to a request from the Court, counsel for the respondents filed a memorandum dated 9 August 2006 outlining their position. They oppose the granting of the stay on the basis sought. Counsel recounted the events leading up to the High Court judgment and confirmed there had been efforts made to settle since the delivery of the High Court judgment. These failed and the appellants were placed on notice that any application to appeal out of time would be opposed. Counsel for the respondents indicated the respondents would consent to a stay if the sum due under the judgment subject to the intended appeal was paid into court or into the respondent’s solicitors’ trust account.
[4] Counsel for the appellants was asked to respond to this but did not do so until 15 September 2006. He indicated in his memorandum in response that the appellants were prepared to pay $200,000 into court. He accepted that the application for stay should have been made in the High Court.
[5] I direct that the application for stay be set down for hearing at the same time as the application for special leave to appeal out of time. This Count is seized of the matter and there is now no point in requiring that a fresh application be made in the High Court. Counsel should ensure that the materials and submissions provided to the Court for the hearing of the application for special leave also deal with all relevant aspects of the application for stay.
[6] I will deal with the position in the meantime under r 7(1) of the Court of Appeal (Civil) Rules 2005. I grant a stay for the period up to the date of the hearing of the application for special leave to appeal out of time (13 November 2006) on condition that the appellants pay into Court (to the Registrar of this Court) the amount for which judgment was entered in the High Court. Such payment must be made by 1 pm on 2 October 2006. That applies only for the period until 13 November 2006: this stay will lapse after the hearing on that day and it will be for the Court considering the applications for stay and for special leave to determine what happens thereafter in the light of the submissions made at the hearing. The terms of this interim stay will not have any bearing on that.

Treadwells, Wellington for Respondents

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[1]	The Registrar has referred to me the appellants’ application for a stay of execution of the judgment of the High Court pending their appeal dated 4 August 2006. Whether there is an appeal will depend on the outcome of their application for special leave to appeal out of time, which I understand will be heard on 13 November 2006.
[2]	The judgment subject to the proposed appeal requires the appellants to pay nearly $320,000 to the respondents. There is no reason given for seeking a stay, and as this Court stated in Salem Limited v Top End Homes Limited CA169/05 27 September 2005, the stay should have been sought in the High Court.
[3]	In response to a request from the Court, counsel for the respondents filed a memorandum dated 9 August 2006 outlining their position. They oppose the granting of the stay on the basis sought. Counsel recounted the events leading up to the High Court judgment and confirmed there had been efforts made to settle since the delivery of the High Court judgment. These failed and the appellants were placed on notice that any application to appeal out of time would be opposed. Counsel for the respondents indicated the respondents would consent to a stay if the sum due under the judgment subject to the intended appeal was paid into court or into the respondent’s solicitors’ trust account.
[4]	Counsel for the appellants was asked to respond to this but did not do so until 15 September 2006. He indicated in his memorandum in response that the appellants were prepared to pay $200,000 into court. He accepted that the application for stay should have been made in the High Court.
[5]	I direct that the application for stay be set down for hearing at the same time as the application for special leave to appeal out of time. This Count is seized of the matter and there is now no point in requiring that a fresh application be made in the High Court. Counsel should ensure that the materials and submissions provided to the Court for the hearing of the application for special leave also deal with all relevant aspects of the application for stay.
[6]	I will deal with the position in the meantime under r 7(1) of the Court of Appeal (Civil) Rules 2005. I grant a stay for the period up to the date of the hearing of the application for special leave to appeal out of time (13 November 2006) on condition that the appellants pay into Court (to the Registrar of this Court) the amount for which judgment was entered in the High Court. Such payment must be made by 1 pm on 2 October 2006. That applies only for the period until 13 November 2006: this stay will lapse after the hearing on that day and it will be for the Court considering the applications for stay and for special leave to determine what happens thereafter in the light of the submissions made at the hearing. The terms of this interim stay will not have any bearing on that.