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High Court of New Zealand Decisions |
Last Updated: 21 March 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-002991
CIV-2014-404-001278 [2015] NZHC 297
BETWEEN
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BRUCE JAMES READ
First Plaintiff
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AND
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ETHNE GLADYS READ Second Plaintiff
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AND
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CHRISTOPHER JOHN READ Third Plaintiff
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AND
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JANFERIE MAEVE ALMOND Defendant
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On the papers
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Counsel:
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J Airey/A Dullabh for the First Plaintiff
N Woods/S Rhind for the Second and Third Plaintiff
D Law for the Defendant
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Judgment:
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26 February 2016
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JUDGMENT OF THOMAS J [APPLICATION FOR A STAY]
This judgment was delivered by me on 26 February 2016 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:...............................
Solicitors:
Rice Craig, Auckland.
Law & Associates, Manukau
READ & ORS v ALMOND [2015] NZHC 297 [26 February 2016]
Introduction
[1] The defendant has applied for a stay of enforcement of my judgment
dated
11 November 2015.1 The judgment ordered the sale of the disputed
property, and division of the proceeds among the co-owners, under s 339 and 343
of the
Property Law Act 2007. She says she has commenced proceedings in the
Court of Appeal to appeal the substantive judgment.
[2] However, it is not immediately clear whether the application is
made under r
17.29 of the High Court Rules, which provides for a stay of enforcement
generally, on the grounds that “a substantial miscarriage
of justice would
be likely to result if the judgment were enforced”, or under the rules
relating to stays of proceeding pending
appeal. Both rules are cited in the
application.
[3] Those rules are distinct.2 The power to stay execution
of a judgment pending an appeal against it is exercised concurrently by the High
Court and Court of Appeal
under r 12 of the Court of Appeal (Civil) Rules
2005:3
... Rule 17.29 High Court Rules is clearly a separate and distinct rule from
the power to stay execution of a judgment pending an
appeal against it. Here,
the defendants have appealed against the summary judgment in question to the
Court of Appeal. The present
application, however, says that it relies solely on
r 17.29. That rule is concerned with the risk of substantial injustice resulting
from the enforcement of the judgment not from the judgment itself and therefore
on its face the appeal to the Court of Appeal is
of little or no relevance to
the present application.
[4] I assume this application falls under r 12.4
Rule 12 of the Court of Appeal (Civil) Rules
[5] The relevant rule provides:
12 Stay of proceedings and execution
1 Read v Almond [2015] NZHC 2797.
2 Andrew Beck McGechan on Procedure (online ed, looseleaf edition, Westlaw) at [HR17.29.01].
3 Palmerston North City Council v Birch [2012] NZHC 3248 at [17].
4 I note that although r 20.10 of the High Court Rules appears to cover stays pending appeal, r
20.1 provides that it covers only appeals to the High Court not from the High Court: see X v
Company B [2014] NZHC 2197 at [14].
(1) None of the matters referred to in subclause (2)
operate as—
(a) a stay of a proceeding in which a decision was given; or
(b) a stay of execution of that decision. (2) The matters are—
(a) an application for leave to appeal; or
(b) the giving of that leave; or
(c) an appeal.
(3) Pending the determination of an application for leave to appeal or an
appeal, the court appealed from or the Court may, on application,—
(a) order a stay of the proceeding in which the decision was given or a stay
of the execution of the decision; or
(b) grant any interim relief.
(4) An order or a grant under subclause (3)
may—
(a) relate to execution of the whole or part of the decision or to a
particular form of execution:
(b) be subject to any conditions that the court appealed from or the
Court thinks fit, including conditions relating to security for
costs.
(5) If the court appealed from refuses to make an order under subclause (3),
the Court may, on application, make an order under that subclause.
(6) If the court appealed from makes an order under subclause
(3), the Court may, on application, vary or rescind that order.
(7) The Court may, at any time, vary or rescind an order made by it under
this rule.
[6] The power under this rule is exercised concurrently by the Court of Appeal and High Court, although applications should be made in the first instance to the High Court in most cases.5 The assessment requires balancing the competing rights of the party who has the benefit of the High Court judgment, against the need to preserve the appellant’s position against the event of the appeal succeeding.6 The
factors to consider in evaluating an application under this rule
include:7
5 Salem Ltd v Top End Homes Ltd [2005] NZCA 375; (2005) 18 PRNZ 122 (CA).
6 Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87.
7 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17, citing Dymocks Franchise
Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC).
(a) Whether the appeal may be rendered nugatory by the lack of a stay; (b) The bona fides of the applicant as to the prosecution of the appeal; (c) Whether the successful party will be injuriously affected by the stay; (d) The effect on third parties;
(e) The novelty and importance of questions involved; (f) The public interest in the proceeding; and
(g) The overall balance of convenience.
[7] The plaintiffs have responded to the application. They
note that the defendant has applied to the Court of Appeal
for an extension of
time for the appeal given the appeal was filed outside the 20 working day period
(albeit only by one day).
[8] The plaintiffs advise the Court that they have opposed the application for an extension which has been set down for an oral hearing in the Court of Appeal on
18 April 2016.
[9] In the circumstances, the plaintiffs accept on a pragmatic
basis that enforcement of the judgment should
be stayed on an interim
basis until the application for an extension has been determined by the Court
of Appeal. This is
without prejudice to their position as to whether the stay
should continue should the application for an extension be granted. The
plaintiffs state that not only do they wish to preserve the right to oppose any
stay but, in any event, they may seek that any continuation
of the stay should
be on terms, including payment of expenses and/or rent.
[10] In the circumstances, the application for a stay is granted until the outcome of the application for an extension is known. The parties can then revert to me once the outcome of that application is available.
[11] Costs on the stay application are
reserved.
Thomas J
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