RAE V ASTEN BUILDING LTD HC AK CIV 2006-404-422

RAE V ASTEN BUILDING LTD HC AK CIV 2006-404-422

A stay of execution pending leave to appeal and any appeal will be granted only if conditions are imposed that secure the creditor against permanent loss of the fruits of judgment; payment into the creditor's solicitors' trust account and prompt prosecution of any appeal satisfy that requirement, and the applicant must meet prescribed conditions including costs.

Citation
openlaw-f383c203_6622_432a_84dd_0f2ad4cf5f03.pdf
Parties
Debtor/applicant: Paul David Rae (trading as Origin Properties Group); Creditor/respondent: Asten Building Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 June 2006
Procedural Posture
Creditors' Petition Under Insolvency Act 1967 / Bankruptcy Proceedings / Application for Stay of Execution Pending Leave to Appeal and Appeal; Hearing on Creditor's Petition
Outcome
Stay of execution granted subject to conditions; costs awarded to respondent on a 2B basis to be fixed by the Registrar.
Legal Topics
Stay of Execution, Security for Appeal, Enforcement of Judgment, Costs
Insolvency Bankruptcy Civil Procedure Appeal Judgment Enforcement Construction Law Stay of Execution Security for Appeal +2 more

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Parties

Paul David Rae (trading as Origin Properties Group)

Debtor/applicant

Asten Building Ltd

Creditor/respondent

Procedural Posture

Creditors' Petition Under Insolvency Act 1967 / Bankruptcy Proceedings / Application for Stay of Execution Pending Leave to Appeal and Appeal; Hearing on Creditor's Petition

Legal Issues

  1. 1 Whether to grant a stay of execution pending application for leave to appeal and any subsequent appeal
  2. 2 Whether the debtor should be required to provide security or payment into court to protect the creditor's judgment
  3. 3 Whether the appeal rights of the debtor are preserved without depriving the creditor of the fruits of judgment

Ratio Decidendi

A stay of execution pending leave to appeal and any appeal will be granted only if conditions are imposed that secure the creditor against permanent loss of the fruits of judgment; payment into the creditor's solicitors' trust account and prompt prosecution of any appeal satisfy that requirement, and the applicant must meet prescribed conditions including costs.

Court Disposition

Stay of execution granted subject to conditions; costs awarded to respondent on a 2B basis to be fixed by the Registrar.

Orders

  • Applicant to pay $33,123.55 (including interest as at 27 March 2006) into the trust account of the respondent's solicitors Messrs Wynyard Wood within seven days; funds not to be paid out pending further order of the Court.
  • Applicant to take all necessary steps to prosecute any appeal he may be granted leave to bring expeditiously and promptly.