The appellant must pay the respondents costs as for an application for leave to appeal on a Band B basis and usual disbursements. (There is no specific rule on stay applications; this is the nearest analogy.)

REASONS OF THE COURT
(Given by Hammond J)

Introduction

[1] We have before us an application for a stay of execution or interim relief in relation to orders made in a judgment of this Court dated 19 June 2009 ([2009] NZCA 255) (which we will call the first judgment), and two judgments of the High Court dated 15 September 2008 and 5 August 2009 (which we will collectively call the second judgment).
[2] Leave to appeal to the Supreme Court against the first judgment was filed on 24 July 2009. An oral hearing is to be allocated for that application but a date has not yet been fixed. We were told it is likely to be heard later this month, or early in October 2009.
[3] As to the second judgment, an appeal has been filed in this Court. Ironically, given the history of this litigation, it was one day late but Mr Harrison QC will consent to an extension of time for that appeal. Security for costs has not yet been paid, and again given the history of the litigation, preparation of a case on appeal is likely to have its own difficulties.
[4] The background to this lengthy, bitter, convoluted, and no doubt expensive family litigation is set out in the first judgment. We do not repeat it here. It is necessary only to record that the litigation concerns the parties’ interests in two farm properties, which for convenience were described as the trust farm and Tombstone.

The present state of the High Court litigation

[5] For present purposes, the point which has been reached in the High Court litigation is that Stevens J has directed:

(a) A sale of the trust farm by public tender. The bids will close on 30 September 2009.

(b) The removal of the present executors and trustees in the A R Scott Estate, and the appointment of Mr Allan Tate (a solicitor) in their place.

(d) That Mr Scott forthwith vacate Tombstone.

The proposal that this Court recast the sale

[6] By his application Mr Scott also advances the proposition (startling in a stay application) that directions should be given by this Court that he be “entitled” to purchase the relevant property interests on the terms set out in the application which is before us (at [4]).
[7] We can deal with that point shortly now. Effectively, it would amount to a variation of the orders made by the High Court. Even if that were permissible as a matter of jurisdiction, this would be a most unusual course to adopt without the matter having been before the Judge again. It amounts to making a significant substantive application within the stay application. But in any event, it is met by the point that Mr Scott can bid for these properties, just like anybody else. The application as framed is another attempt to gain a preferential, pre-emptive position, bolstered in part by an argument which can only charitably be described as “novel”: that the farm is literally turangawaewae, and that that is a definitive underlying principle in New Zealand law.
[8] We have no hesitation in rejecting that application. Mr Scott could have come to a private treaty (if one was to be had) at any time prior to or during this litigation; he can bid now for the property or properties, but he cannot relitigate the merits within a stay application.

The stay application in relation to the Supreme Court appeal

[9] The ground of appeal to the Supreme Court with respect to the first judgment is that there was a miscarriage of justice because Mr Scott was not “heard”.
[10] We are in some difficulty on that issue because it is not appropriate for this panel to comment on what another panel did, on material which will be in issue before the Supreme Court.
[11] We can however appropriately note these points. Mr Scott’s account, on what is before us, appears to be quite at variance with that of his former solicitor. Yet, although he was invited to, he has refused to give a waiver of privilege to enable those solicitors to be spoken to and if necessary to make an affidavit. That is a matter of some considerable significance in that context.
[12] The argument for a miscarriage is that the panel of this Court, which heard argument on and delivered the first judgment, did so in the absence of counsel for Mr Scott (or an appearance by Mr Scott in person). That panel took the view that it was sufficient that it had written submissions and affidavits. But if the assumption is made that that was not a sufficient “hearing”, the question then is whether more could and should have been advanced to this Court, the absence of which brought about a miscarriage.
[13] Ms Davenport said that there was nothing that she could point to. Rather, she maintained that the presence of a skilled advocate might have had more influence, as it were, with the Court. We observe that we have considerable difficulty with the argument that a silver-tongued counsel could have made a difference. The usual rule in situations such as this, whether in the criminal or the civil jurisdiction, is that to establish a miscarriage it is necessary to point to something distinct which can then fairly and appropriately be said to have given rise to real concerns about a possible miscarriage. In short, there has to be some relevant connection between the event complained of, and the outcome. But nothing has been identified to us.
[14] Ms Davenport complains that “unless” orders would have been the appropriate outcome, not the course taken by this Court. It is right to note that the possibility of unless orders was raised by the presiding Judge at that hearing, as a matter of fairness to Mr Scott, but then the panel took the course it did, for the reasons given in the first judgment. In short, it was the panel which raised the very point Ms Davenport now relies upon.
[15] As to the practicalities of a stay in relation to that application, we deal with that aspect in the next section of this judgment.

The stay application in relation to the second judgment (High Court)

[16] It is appropriate to put the issues under this head in their broad context. Mr Scott accepts that, to preserve what he regards as his interests, he is going to have to buy out the other interests in these properties at some point. The central issue for some considerable time has been, and still is, the basis on which he is to do so. Obviously, the sensible resolution of this whole unfortunate litigation would have been an agreed private treaty between the parties to achieve that outcome. That did not occur. Stevens J has had the burdensome task of trying to produce a fair outcome to which, with respect, he applied himself scrupulously. He gave Mr Scott the very opportunity to achieve a better outcome for himself, and it was not taken up.
[17] The cause of all the present difficulties is that Mr Scott has sought to control the sale process. He did so, for instance, by his attempt to have the Court endorse what was called a “buy-out application” in relation to the trust farm: see [83] of the 5 August 2009 High Court judgment. But as Mr Harrison rightly pointed out before us on this application, as a matter of law that has already been determined against Mr Scott. He abandoned his first appeal on that point. And in the 5 August 2009 judgment, the concession was expressly made that the issue was res judicata: see [86]. Mr Scott, in another roundabout way, has endeavoured to raise that issue again before us on this very application. As noted above, we cannot accede to that application.
[18] After nearly six years of litigation, the High Court has ordered the sale of the two farm properties – one which is held for sale and distribution pursuant to a trust deed (which had a final distribution date of 1 March 2002), and the other pursuant to a will trust in respect of the childrens’ father’s estate. In respect of the first, Mr Scott is a one-fourth beneficial owner along with his three sisters. In respect of the second (Tombstone), he is a residuary beneficiary (subject to an existing life interest) as to a one-eighth interest (as is likewise the case with each of his three sisters).
[19] Mr Scott’s difficulty is that he is not able to dictate, whether against his mother (as the owner of the second half share in Tombstone) or his three sisters, whether and on what basis these two farm properties should be sold.
[20] He does however wish to become the sole owner of the two farms. And Ms Davenport accepted that he will have to do so at a “market price”. Although his position has changed at times, his present objection is that he wants there to be a public auction as opposed to a tender process, at least in relation to the trust farm. There is no impediment whatsoever to him entering the tender process. On his own evidence, he has access to funding to enable him to tender. But Ms Davenport claims that this is a “closed” process rather than an “open” one. We accept that it is entirely possible that he might have to pay more (effectively, a plusage) to ensure he acquires the trust farm by the tender process than what he would have to pay at auction. But that is simply a matter of normal economics: what is Mr Scott prepared to pay to acquire the trust farm?
[21] The short and practical point is that the day was always going to come when Mr Scott was going to have to face up to what he was prepared to expend if he wished to maintain an interest in the two farms. He says that he has the necessary funding to face this issue now. And if he is not in a position to acquire the farms by paying a market price, then the present stay applications are quite pointless.
[22] As was suggested in the first judgment, this case has reached the equivalent of an end-game. The “contest”, to the extent there is still one, is about relief or process, coupled with a self-evident desire on the part of Mr Scott to delay matters for what could fairly be seen to be his own ends.
[23] The issue presently before us is therefore a narrow one: what is the most appropriate process for sale of the trust farm? It is difficult to see how that determination by the Judge is open to any realistic challenge. It is not for this Court to say that the Judge got that process wrong, particularly when he had earlier given Mr Scott the opportunity he did. That decision was taken on the basis of appropriate professional advice, adduced in evidence. It cannot be that Mr Scott can simply substitute, as it were, his personal preference, or one that better suits his own ends.
[24] At the practical level, it is obvious that if there is to be a stay, and the fresh appeal rolls ponderously on, with all the historical difficulties that have attended this litigation, it will be many months – perhaps years – before the point is reached which the parties all accept has to happen: the farms will have to be sold. In short, the present dispute is circular.
[25] We have not overlooked the plea that there is a severe impact on Mr Scott’s personal circumstances. There are three answers to that issue. First, he can buy the property. Secondly, he has had earlier opportunities to avoid that outcome. Thirdly, it has always been the case that (absent a purchase by him) he was going to have to vacate.

Conclusion

[26] The application is dismissed.
[27] The appellant must pay the respondents costs as for an application for leave to appeal on a Band B basis and usual disbursements. (There is no specific rule on stay applications; this is the nearest analogy.)

Solicitors:
Holland Beckett, Tauranga for Appellant
O’Sullivan Clemens, Rotorua for Respondents

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