[1] On 12 March 2010 Venning J granted summary judgment against the appellant, Mr Wayne George Young, in which he:[1]

(a) Declared that DJM Trustees No 40 Ltd is entitled to possession of the property known as 1A/10 Ruskin Street, Parnell;

(b) Required Mr Young to vacate the premises by 5 pm Monday 15 March;

(c) Awarded damages of $425.00 per week from 6 January 2010 until vacation of the premises; and

(d) Ordered Mr Young to pay costs on a 2B basis together with disbursements.

[2] Mr Young has lodged notice of appeal and, more to the point, has applied for a stay. He did not apply direct to the High Court for a stay.
[3] A major problem with the case is that Mr Young’s submissions and affidavit were, at best, at a high level of generality (in that they did not engage directly with what was in issue in the summary judgment proceedings) and, at worst, just legalistic gobbledegook. The orders made by Venning J were inevitable on the evidence before him and, on that evidence, any appeal would be hopeless. But because of concerns on our part that the material before Venning J might not be complete and that Mr Young is somewhat out of his depth in the current situation, we attempted in the course of the hearing to tease out his underlying complaints and to relate those complaints to the issues in the case.
[4] Mr Young was the owner of the premises. He was a party to litigation relating to construction faults and the steps taken by the body corporate and others to address those faults. As we understand it, he was declared bankrupt in early 2008 as a result of not meeting costs orders made against him in those proceedings.[2] There are indications in the papers (but not in the form of evidence) that the only creditors are the body corporate and a Mr Leishman (who is associated with the body corporate).
[5] The present respondent acquired the premises from the Westpac Bank which had a mortgage over the premises and has exercised its power of sale.
[6] Mr Young is extremely critical of the actions of a large number of people associated with the earlier proceedings and his subsequent bankruptcy. Mr Young plainly sees the sale by the Bank to the respondent as associated with, and as a continuation of, fraud and misfeasance in respect of the earlier case and its subject matter.
[7] Mr Young attempted to link the Westpac Bank to his underlying complaints by asserting that the same solicitors act for both the Bank and some of his opponents and complaining that the Bank lent him money on a defective building. These arguments are not persuasive. It therefore seems appropriate to approach the case on the assumption that the Bank has sought to maximise its own best interests as mortgagee. There is no evidential basis for any alternative hypothesis.
[8] Mr Young also made it clear that he believes that people who were associated with the earlier proceedings are in behind the respondent company. Mr Neutze (counsel for the respondent) was initially reluctant to engage with this argument, relying on an absence of evidence of any connection. When, however, we pointed out that Mr Leishman was the addressee of the rental valuation on which the award of damages is based, Mr Neutze conceded that Mr Leishman was indeed in behind the respondent. What is not clear is whether this is in his own right or on behalf of the body corporate.
[9] This coyness over the beneficial ownership of the respondent company was unfortunate. But there are legitimate reasons why Mr Leishman and / or the body corporate might wish to acquire the property (including a charging order in favour of the body corporate against the property) and no evidence (as opposed to assertions) of fraud on their part. Furthermore, Mr Young’s own position in relation to the property is tenuous, given his bankruptcy and the non-participation of the Official Assignee in the proceedings. As well, on the assumption (which we propose to act on) that the Bank would have been anxious to advance its own interests, there is no reason to think it likely that the sale was at an undervalue.
[10] Accordingly, we do not, on the material before us, see the appeal as arguable.
[11] If the lack of merit of the appeal was not enough to justify dismissal of the stay application, there are, as well, balance of convenience considerations. Against a stay is the reality that Mr Young will not be able to compensate the respondent for loss of access to the premises occasioned by a stay (were we to grant one) should his appeal be unsuccessful (as seems practically inevitable). On the other hand, but also telling against a stay, is that the refusal of a stay will not stop him prosecuting his appeal should he wish to do so.
[12] In those circumstances the application for a stay is dismissed.

Solicitors:
Brookfields Lawyers, Auckland for Respondent

[1] DJM Trustees No 40 Ltd v Wayne George Young HC Auckland CIV-2009-404-8522, 12 March 2010.
[2] See Re Young ex parte Body Corporate 197217 HC Auckland CIV-2007-404-1874, 27 March 2008.

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