[1] The appellant seeks an interim stay of an order made by the Tenancy Tribunal on 14 September 2007 pending a hearing of his application for special leave to appeal to this Court. We dealt with the application as a matter of urgency by way of a telephone hearing on 11 April 2008. At the conclusion of the hearing we dismissed the application and indicated that reasons would follow. We now give our reasons.

Background

[2] The appellant and his wife occupy a property on Auckland’s North Shore under a residential tenancy. The property is owned by a family trust, of which the appellant is the sole trustee. The respondent holds two mortgages over the property, which were personally guaranteed by the appellant and his wife.
[3] The family trust defaulted on the payments due under the mortgages. The respondent sought summary judgment against the appellant as guarantor for a sum in excess of $2m. Associate Judge Gendall granted summary judgment, and ordered the appellant, in his capacity as trustee of the family trust, to deliver up possession of the property to Dorchester: HC AK CIV 2007-404-2384 13 September 2007. The order for possession did not relate to the appellant in his capacity as a tenant of the property.
[4] On 14 September 2007, the Tenancy Tribunal made an order terminating the tenancy between the Fetherstons and the family trust, and granted the respondent possession of the property under s 58 of the Residential Tenancies Act 1986. The Fetherstons appealed against the Tribunal’s decision to the District Court. Their appeal was dismissed: DC NSD CIV-2007-044-1987 13 November 2007.
[5] The appellant then appealed to the High Court on a question of law. Randerson J rejected that appeal: HC AK CIV 2007-404-7016 18 March 2008. Following that, the appellant applied to the High Court for leave to appeal to the Court of Appeal under s 120 of the Act. He also applied for a stay of execution pending appeal. Randerson J rejected both applications on 7 April 2008. On 11 April 2008, the appellant filed an application for leave to appeal in this Court, together with an application for a stay of execution.

Discussion

[6] The appellant argued that his appeal would be rendered nugatory if he were evicted from the property prior to the determination of his application for special leave to appeal. He said that the Tribunal had acted without jurisdiction and that the issue was an important one.
[7] Mr Johnson for the respondent advised that the respondent would undertake to the Court that it would not pass title to the property until the Court had determined the appellant’s application for special leave to appeal. Accordingly, he said, no stay was necessary. He also submitted that the proposed appeal was without merit.
[8] We asked the appellant whether the respondent’s undertaking was sufficient to protect his interests. He said that it was not. He said that there was no urgency, that he would co-operate with the respondent in preparing the property for sale and that if circumstances changed, the respondent could apply to the Court to have the stay lifted.
[9] We consider that the undertaking offered by the respondent is sufficient to meet any prejudice to the appellant. The appellant has known that he might be required to vacate the property since 14 September 2007, when the Tribunal gave its decision. Further, the respondent has received no payment in respect of the property since 2005. If the respondent complies with its undertaking not to pass title and the appellant ultimately succeeds on his appeal, he will be able to resume the tenancy, and may have a claim for damages in respect of the period that he has been kept out of the property.
[10] We make no comment on the merits of the proposed appeal, other than to note that the appellant’s argument that the Tribunal had no jurisdiction is directly contrary to a submission advanced on his behalf in opposition to the respondent’s application for summary judgment. Then the appellant’s argument was that the tenancy was subject to the Act, so that the High Court had no jurisdiction in respect of it. The order for possession made by the High Court was drafted to reflect that. The appellant will need to explain why he took that stance in opposing the application for summary judgment but now seeks to take the opposite stance in the proposed appeal.

Decision

[11] The application for an interim stay is declined, on the basis that the respondent undertakes that it will not pass title to the property until this Court has determined the appellant’s application for special leave to appeal.
[12] Costs are reserved.

Solicitors:
Martelli McKegg Wells & Cormack, Auckland for Respondent

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