MILLS v DALZELL [2023] NZHC 1530

MILLS v DALZELL [2023] NZHC 1530

The application to stay enforcement of costs was adjourned. Defendants may take steps towards enforcement but the court reserved leave to relist the stay application if enforcement steps will result in sale of either of the plaintiffs' properties or adjudication of bankruptcy before the appeal is determined; such sale or bankruptcy would be halted depending on circumstances and progress of the appeal. Provisional no costs ordered on this interlocutory decision subject to written memoranda if sought.

Citation
[2023] NZHC 1530
Parties
First Plaintiff: Lynette Joy Mills; Second Plaintiff: Carl James Peterson; First Defendant: Kelly Dalzell; Second Defendant (deceased): Tracy Levenbach; Third Defendant: ASB Bank Limited; Fourth Defendant: Graham Howard Mills; Fifth Defendant: John Levenbach; Sixth Defendant: Carol Krammer
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 June 2023
Procedural Posture
Civil – Interlocutory Application to Stay Costs Pending Appeal / Interlocutory: Application to Stay Execution of Costs Orders While Substantive Appeal Pending
Outcome
Application adjourned; defendants permitted to take enforcement steps but sale of plaintiffs' properties or bankruptcy to satisfy costs is stayed without further leave; leave reserved to relist if enforcement will result in sale before appeal determined; provisional order no costs on this decision subject to memoranda.
Legal Topics
Stay of Execution, Costs Awards, Appeal Pending, Security for Costs, Enforcement Against Property
Civil Procedure Costs Appeal Enforcement Property Law Stay of Execution Costs Awards Appeal Pending +2 more

Case Brief

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Parties

Lynette Joy Mills

First Plaintiff

Carl James Peterson

Second Plaintiff

Kelly Dalzell

First Defendant

Tracy Levenbach

Second Defendant (deceased)

ASB Bank Limited

Third Defendant

Graham Howard Mills

Fourth Defendant

John Levenbach

Fifth Defendant

Carol Krammer

Sixth Defendant

Procedural Posture

Civil – Interlocutory Application to Stay Costs Pending Appeal / Interlocutory: Application to Stay Execution of Costs Orders While Substantive Appeal Pending

Legal Issues

  1. 1 Whether the plaintiffs may obtain a stay of execution of costs orders under r12 Court of Appeal (Civil) Rules pending an appeal they have filed only against the substantive judgment
  2. 2 Whether the Brook Valley balancing factors justify staying enforcement of costs
  3. 3 Whether sale of plaintiffs' properties would cause irreparable or unjust hardship and render an appeal nugatory

Ratio Decidendi

The application to stay enforcement of costs was adjourned. Defendants may take steps towards enforcement but the court reserved leave to relist the stay application if enforcement steps will result in sale of either of the plaintiffs' properties or adjudication of bankruptcy before the appeal is determined; such sale or bankruptcy would be halted depending on circumstances and progress of the appeal. Provisional no costs ordered on this interlocutory decision subject to written memoranda if sought.

Court Disposition

Application adjourned; defendants permitted to take enforcement steps but sale of plaintiffs' properties or bankruptcy to satisfy costs is stayed without further leave; leave reserved to relist if enforcement will result in sale before appeal determined; provisional order no costs on this decision subject to memoranda.

Orders

  • Application to stay execution of costs adjourned
  • Defendants may take steps towards enforcement of the costs orders but may not sell either of the plaintiffs' properties or pursue adjudication of bankruptcy to satisfy those costs without further order of the Court