Lee v District Court at Auckland [2013] NZHC 1542 (24 June 2013)

Last Updated: 25 July 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5404 [2013] NZHC 1542

UNDER the Judicature Amendment Act 1972

IN THE MATTER of a costs decision made by the Auckland

District Court

BETWEEN YOON LEE Plaintiff

AND DISTRICT COURT AT AUCKLAND First Defendant

AND ZHIHONG GAO AND LIN GE Second Defendants

AND JOHN CARTER, BRENT O'CALLAGHAN AND TIMOTHY UPTON SLACK

Third Defendants

Hearing: 24 June 2013

Appearances: Plaintiff in person

No appearance for First Defendant

G J Luen for Second Defendants

K J M Robinson for Third Defendants

Judgment: 24 June 2013

_{JUDGMENT OF KEANE J}

Solicitors:

McElroys, Auckland

Hesketh Henry, Auckland

YOON LEE v DISTRICT COURT AT AUCKLAND [2013] NZHC 1542 [24 June 2013]

[1] On 7 May 2013 Peters J declined the plaintiff’s application for judicial review of orders made in the District Court under which he became liable to pay to the second and third defendants various sums of money. On 5 June 2013 he appealed that decision to the Court of Appeal. He seeks now a stay and that is opposed.

[2] The issue arising on his application, whether as on review under s 8 of the Judicature Amendment Act 1972, or as on a stay under s 16, and on the exercise of this Court’s inherent jurisdiction in either event, is whether his appeal would be rendered nugatory if the second and third defendants were to be paid out now and he wins his appeal.

[3] The second and third defendants are willing to answer any risk that poses by undertakings that the funds, if paid over, will be held on trust in an interest bearing account to await the outcome of the appeal; and the plaintiff, himself a solicitor, and counsel have therefore agreed the terms on which payment is to be made and received. Those terms are as follows:

Within 14 days the applicant/plaintiff will pay:

(a) $66,022.64, on account of sealed judgments and interest in favour of the second respondents, to Hesketh Henry, solicitors’, trust account; and

(b) $62,334.69 on account of sealed judgments and interest in favour of

the third respondents to McElroys, solicitors’, trust account.

The payments are to be held in the respective solicitor’s trust accounts and interest bearing deposit and upon the undertaking that the payments will be held pending the disposition of the appeal in CA362/2013 and distributed in accordance with any direction of the Court of Appeal in CA362/2013.

[4] There remains this issue. To make these payments the plaintiff will have to mortgage his property, which is presently unencumbered, but over which the first defendant has a statutory land charge and the second and third defendants have charging orders.

[5] The second and third defendants are to give, therefore, to the plaintiff or his solicitors, as soon as practicable, discharges of their charging orders, on his undertaking not to register those discharges until he has made the payments called for under the terms agreed. The plaintiff does not consider that the first defendants’ statutory land charge presents any impediment. It will be able to be discharged later.

[6] The second and third defendants seek indemnity costs but, even although I

have declined a stay, there is now a payment arrangement in place which gives them security. I will not make any order as to costs.

P.J. Keane J