Almond v Read [2016] NZHC 2137 (8 September 2016)

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BETWEEN	JANFERIE MAEVE ALMOND Applicant
AND	BRUCE JAMES READ First Respondent GLADYS READ Second Respondent CHRISTOPHER JOHN READ Third Respondent

Hearing:	8 September 2016
Counsel:	S I Perese for Applicant/Defendant J M Airey for First Respondent/First Plaintiff N W Woods for Second and Third Respondents/Second and Third Plaintiffs
_Judgment:	_{8 September 2016}

[1] On 11 November 2015, Thomas J gave judgment in this case in favour of the plaintiffs.¹The essence of the dispute concerned the nature and extent of interests of the parties in a piece of land. The judgment of Thomas J effectively awarded by way of constructive trust an interest totalling, in percentage terms, just over 75 per cent to the plaintiffs, with the remainder being the interest of the defendant. The defendant’s case had been that she had an entitlement to a 100 per cent interest in the land.

[2] Mr Perese for the defendant now applies for a stay of the enforcement of Thomas J’s judgment. He filed the application on 30 August 2016, the same day that he filed in the Supreme Court an application for leave to bring an appeal directly to the Supreme Court against the judgment of Thomas J.

[4] The defendant sought to appeal Thomas J’s decision to the Court of Appeal. I am told that because the appeal was filed one day out of time, it was necessary for a concurrent application for leave to appeal to be decided. In the meantime, the defendant applied to Thomas J for a stay of enforcement of her judgment. The plaintiffs did not oppose the application on the pragmatic basis that the judgment should be stayed in the interim until the application for leave to appeal was

determined by the Court of Appeal. Accordingly, Thomas J granted an interim stay.²

[5] The Court of Appeal declined the defendant’s application for leave to appeal.³

The Court of Appeal considered the merits of the defendant’s appeal and rejected

those merits in very strong terms. In equally strong terms, the Court of Appeal approved the overall reasoning of Thomas J.

[6] The future of the stay of enforcement granted by Thomas J came back before her on 16 May 2016. Of course, there was no basis for the interim stay to continue and the defendant consented to the stay being discharged.

[7] The plaintiffs sought orders to enable the property to be sold and the proceeds divided in accordance with the judgment of Thomas J. In her Minute of 16 May

2016, Thomas J records that the defendant accepted the property should be sold but took exception with some of the procedures proposed by which the sale would take place. Her Honour dealt with those matters in her Minute.

[8] The sale process continued. However, there was friction between the defendant and the plaintiffs, as is evident from a Minute of Thomas J dated 18 July

[1] ... Notwithstanding the fact that all parties had apparently agreed to the appointment of Barfoot & Thompson as sole and exclusive agents it appears that Ms Almond has listed the property for sale with Harcourts. For the reasons set out in counsel’s memorandum, the plaintiffs are not happy with that choice and maintain that, as has been agreed, Barfoot & Thompson should be appointed.

[9] Justice Thomas directed that Barfoot & Thompson be the agent appointed for the sale of the property. Her Honour also directed that the date for sale be no later than eight weeks after the date of the orders set out in the joint memorandum of the plaintiffs dated 30 November 2015 as amended by her Minute of 16 May 2016.

[10] I pause to note that her Honour recorded that by email dated 11 July 2016 sent to the Court, Ms Almond stated that she was seeking another lawyer so she could apply for judicial review or a hearing with the Supreme Court.

[11] The procedures directed by the Court for the sale of the property have taken place such that the auction of the property is now scheduled for next Tuesday,

[12] Mr Perese now applies for a further stay of the enforcement of Thomas J’s

judgment on the basis that he can cross the threshold imposed by r 17.29 of the High

Court Rules. This is the governing rule to which I must have regard. The threshold is that “a substantial miscarriage of justice would be likely to result if the judgment were enforced”.

[13] In considering this test, I have to have regard to the threshold which exists before the door of the Supreme Court. Section 13 of the Supreme Court Act 2003 sets out the criteria for leave to appeal:

(1) The Supreme Court must not give leave to appeal to it unless it is satisfied that it is necessary in the interests of justice for the Court to hear and determine the proposed appeal.

(2) It is necessary in the interests of justice for the Supreme Court to hear and determine a proposed appeal if—

(b) a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard; or

(4) The Supreme Court must not give leave to appeal to it against an order made by the Court of Appeal on an interlocutory application unless satisfied that it is necessary in the interests of justice for the Supreme Court to hear and determine the proposed appeal before the proceeding concerned is concluded.

(5) Subsection (2) does not limit the generality of subsection (1); and subsection (3) does not limit the generality of subsection (2)(a).

[14] However, the threshold is raised by s 14 which provides that there shall be no direct appeal from a Court other than the Court of Appeal unless exceptional circumstances are established:

The Supreme Court must not give leave to appeal directly to it against a decision made, a conviction entered, or a sentence imposed, in a proceeding in a New Zealand court other than the Court of Appeal unless (in addition to being satisfied that it is necessary in the interests of justice for the Court to hear and determine the proposed appeal) it is satisfied that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court.

[15] The grounds upon which the defendant seeks an order for stay are set out in the interlocutory application of the defendant dated 30 August 2016. They have been addressed before me today by Mr Perese. There are six of them:

(a) The Applicant has applied to the Supreme Court for leave to appeal to the Court against the High Court decision dated 11 November

(b) If a stay is not granted, the application for leave to appeal and (if granted) the appeal itself will be rendered nugatory as the Applicant will have to sell the property which is the subject of the proceedings;

(c) If a stay is not granted pending the outcome of the proceedings in the Supreme Court, the Applicant’s dependant daughter will be detrimentally affected;

(d) Any prejudice to the Respondents is limited to a delay in selling the property while the question of an appeal is addressed;

(e) The Applicant will suffer irreparable damage if a stay is refused and the property is sold;

(f) There will be a substantial miscarriage of justice if a stay is not granted and the judgment dated 11 November 2015 were enforced.

[16] Shorn of the legalese, the background to these grounds, relevantly, is that the defendant has resided upon the property in question with her daughter for some years. The property is her home and she lacks the financial ability to acquire another. In a situation where the defendant claims a 100 per cent interest in the property, and has an attachment to it, to allow it to be sold at this point would render nugatory any judgment of the Supreme Court accepting that she has the 100 per cent interest in the property.

[17] So far as the merits of the case are concerned, Mr Perese has given detailed submissions on where, in his submission, Thomas J and the Court of Appeal erred in their approaches to the law of constructive trusts and to the facts which were in evidence before Thomas J. In other words, his submission is that the very high threshold which is apparent from the passages of the Supreme Court Act which I have quoted can be crossed.

[18] I accept that if I refuse a stay then it is likely that the auction will proceed and the property will be sold. In such a case, the defendant will lose her home and will

receive something close to 25 per cent of the sale proceeds. The balance of the sale proceeds would be distributed between the plaintiffs, one of which is the defendant’s

92 year old mother. There is, however, no suggestion that if the Supreme Court were ultimately to find for the defendant that the plaintiffs would be unable to return to her their monetary shares in the property.

[19] I, of course, have not had the opportunity to put myself in the position of Thomas J, nor of the Court of Appeal, and so I cannot come to any deep view of the merits of the appeal. I do not think I need to.

[20] The situation is that there has been a detailed and lengthy decision of a Judge of this Court which has been endorsed by the Court of Appeal in some of the strongest language I have seen. Following the Court of Appeal’s judgment, the defendant consented to the lifting of the interim stay order, consented to the sale of the property, and actively participated in the sale process. I have heard Mr Perese’s submissions as to the emotional turmoil which caused the defendant to act in this way. I have heard him also on the delays occasioned by the difficulties of obtaining legal aid to proceed with the appeal. I have taken into account Mr Perese’s advice to me that he told the defendant that she had to comply with orders of the Court.

[21] Nevertheless, the only reason for granting a stay would be if I were to consider that a substantial miscarriage of justice would be likely to result if the judgment were enforced. “Miscarriage of justice” is a term which takes into account the interests of all of the parties to a case. It does not take into account only the position of the defendant.

[22] Here, the plaintiffs have for some time been denied the fruits of their judgment. I accept that one of the plaintiffs, Mrs Read, is 92 years old and in frail health. I am told that her interest in the property is almost her only significant asset and obviously she has a limited period in which to enjoy the monetary value of the property which this Court has held that she has. Further, and without deciding the merits, the arguments put forward by Mr Perese, as set out in his documents filed with the Supreme Court, do not carry the appearance of matters which would likely cross the threshold before the door to the Supreme Court.

[23] Accordingly, I am unable to find that a substantial miscarriage of justice would be likely to result if the judgment were enforced. The application for a stay is

High Court of New Zealand Decisions

Almond v Read [2016] NZHC 2137 (8 September 2016)