AUTON v AUTON (Stay of Judgment Application) [2020] NZHC 981

AUTON v AUTON (Stay of Judgment Application) [2020] NZHC 981 [13 May 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-000144[2020] NZHC 981BETWEEN ANDREW MYERS AUTONApplicantAND VALERIE BEATRICE AUTONDefendantConference: 11 May 2020Counsel: P N Allan for Applicant (and Applicant in person)H A Evans and S B Henry for RespondentJudgment: 13 May 2020JUDGMENT OF ASSOCIATE JUDGE PAULSEN[Stay of Judgment Application]This judgment was delivered by me on 13 May 2020 at 11.30 ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:The interim stay[1] In a judgment of 7 May 2020, I dismissed the applicant's application unders 143 Land Transfer Act 2017 to sustain his caveat over a property at 47 Aorangi Road,Christchurch. Late in the afternoon of 8 May 2020, an emailed request from theapplicant for a stay of the judgment was put before me. No formal application for astay was made and no appeal from the judgment has been filed. Despite this, becauseit was known the respondent intended to sell the property, I ordered an interim staywithout hearing from the respondent. I directed that this interim order would bereviewed on 11 May 2020. At a hearing conducted by telephone conference on11 May 2020, I decided that the interim order would be discharged. I now provide myreasons in writing.Background[2] The facts of this case can be found in my judgment of 7 May 2020. For presentpurposes the following matters are relevant.[3] On 26 February 2020, the applicant lodged his caveat (the caveat) over47 Aorangi Road, Christchurch after he learned the respondent had placed the propertyon the market for sale.[4] On 5 March 2020, the respondent entered into an agreement to sell theproperty. Settlement was agreed for 8 May 2020. The respondent then applied to theRegistrar-General of Land to lapse the caveat and notice of this was given to theapplicant by letter dated 11 March 2020.[5] On 25 March 2020, the applicant filed his application that the caveat not lapse,and Gendall J made an interim order that the caveat was not to lapse pending furtherorder of the Court.[6] On 16 April 2020, the respondent filed her opposition to the applicant'sapplication. Due to the impending sale of the property, she sought urgency for thehearing of the application.[7] On 21 April 2020, I conducted a telephone conference with counsel. I madedirections for the filing of further evidence from the applicant and submissions. I alsoset the application down for hearing on 4 May 2020. My Minute recording thosedirections noted the urgency of the matter and the sale scheduled for 8 May 2020. Noobjection was taken to the timetable by counsel.[8] On 4 May 2020, the application was heard. I reserved judgment but indicatedthat it would issue prior to 8 May 2020. It was not suggested that if I found againstthe applicant a stay would be sought or that I should postpone the judgment takingeffect so that a stay could be considered.[9] I issued my judgment during the afternoon of 7 May 2020 dismissing theapplication. The respondent sealed the judgment and settlement of the sale of theproperty by the respondent occurred during the afternoon of 8 May 2020.[10] Late in the afternoon of 8 May 2020, the Registrar put before me the applicant'semail asking for time to instruct his lawyer to file a stay application. Whilst he didnot expressly state an appeal would be filed I inferred that was his intention. He alsoreferred to "piles" of evidence that were not before me in making my decision.[11] I immediately ordered an interim stay of the judgment,1 but noted in my Minutethe possibility that the property had sold. I directed that the matter would bereconsidered at 10am on 11 May 2020.[12] On 10 May 2020, the applicant sent a lengthy email to the court and all counselheaded "AAuton's true account of events." It dealt with many matters but was in largepart a narrative of the applicant's grievances against his parents and the justice system.It also dealt with his claim to an interest in the Aorangi Road property. It raised newmatters that had not been before me at the hearing. I also received and approved arequest from the applicant's counsel that both he and the applicant be connected to theteleconference call.1 Court of Appeal (Civil) Rules 2005, r 12(3)(a) and (b); Diver v Loktronic Industries Ltd [2012]NZCA 272, (2012) 21 PRNZ 254.[13] On 11 May 2020, I heard from counsel and also from the applicant. Theapplicant actively participated in the hearing. Mr Evans advised that settlement of thesale had occurred during the afternoon of 8 May 2020, before the interim stay wasordered. At the conclusion of the hearing, I made my decision not to extend the interimorder and discharged it. I said that my reasons would be confirmed in writing.[14] On 12 May 2020, the applicant sent another email to the Court (but not tocounsel). I mention it only for the purposes of disclosure as it has no bearing on mydecision. In this email the applicant complained he had not had a chance to presentall the relevant facts and evidence. He repeated his grievances against his parents. Heexpressed the hope that something could be done to assist him.Submissions[15] Mr Evans submitted that as the respondent has sold the property extending thestay would be futile. He confirmed my understanding that with routine landtransactions under the e-dealing system, once a dealing is submitted registration mayoccur almost instantaneously. Mr Allan agreed with Mr Evan's assessment.[16] The applicant made submissions concerning his alleged interest in AorangiRoad, and traversed new matters. He was critical of the respondent, who he saidshould not have sold the property when he had lodged a caveat and should also havewaited for him to file an appeal. He asserted that the buyer of Aorangi Road wasaware of his caveat and that the sale of the property should not prevent the making oforders to protect his position. His agreement with the respondent to acquire theproperty was, he said, earlier in time and should be completed first.Decision[17] The Court's power to order a stay or interim relief to protect an appellant'sposition pending an appeal arises under r 12(3) Court of Appeal (Civil) Rules 2005,which reads:Pending the determination of an application for leave to appeal or an appeal,the court appealed from or the Court may, on an interlocutory application, –(a) order a stay of the proceeding in which the decision was given or a stayof the execution of the decision; or(b) grant any interim relief.[18] Under r 12(7) the Court may, at any time, vary or rescind an order made underr 12.[19] In deciding whether to order a stay or interim relief the Court balances therights of the party who obtained the benefit of the judgment against the need topreserve the position of the party appealing. The Court must also consider the effectsof the judgment on third parties.2[20] The power to grant interim relief under r 12(3)(b) is not unlimited and will onlyprotect the position of the appellant that will be ruled on in the appeal. In Fullers Bayof Islands Ltd v Otehei Bay Holdings Ltd Asher J noted:3The relief sought under r 12 must protect the position that will be ruled on inthe appeal. It cannot derive from a general wish to do justice between theparties. Justice is referenced only against the issues squarely raised on theappeal.Thus, Fullers are seeking interim orders which will give them relief they didnot seek in their claim and are not seeking on appeal. This seems to me fatalto the application. Rule 12 is not designed to give a Court a general discretionto make any further orders it might consider just, to resolve further disputesthat have arisen since the hearing. A Court cannot give relief in thejurisdictional vacuum of an unpleaded claim. The difficulty faced by Fullersin this application is demonstrated by the fact that the appeal will not berendered nugatory by a refusal to make these orders. These orders havenothing to do with the registration of the lease or of the direction that thereshould be an application for a concession, sought in the cross-appeal. Nor dothey have anything to do with the relief sought by Otehei in their appeal, whichwill be the setting aside of the orders made by Hugh Williams J. They haveno direct connection to the proceedings, or execution of the judgment, and donot fall within the r 12 jurisdiction.[21] Here, it is not appropriate to extend the interim stay and no purpose would beserved in doing so because the judgment has already been given effect. The order thatthe caveat lapse was sealed and submitted for registration. Following that, the sale of2 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].3 Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Auckland CIV-2009-404-7207,23 February 2011 at [20] and [22].the property to a third party was settled and the dealing submitted for registration. Inthose circumstances, extending the interim stay will achieve nothing at all and itshould be discharged.[22] The applicant has challenged the buyer's title to the property and hassuggested the Court must have the power to make some unspecified order protectinghis position against the buyer. There is nothing to suggest the buyer was not a bonafide purchaser for value whose title is beyond challenge from the applicant. Whetherthe buyer knew of the caveat does not assist the applicant when at the time ofsettlement the caveat had lapsed by order of the Court.[23] In any event, the Court cannot make an interim order affecting the buyer forthe reason set out in Fullers Bay of Islands Ltd.4 The buyer was not a party to thisproceeding and will not be a party to any appeal from my judgment of 7 May 2020.No orders can be made affecting his/her title to the property or the enjoyment and useof the property that his/her title confers. Such interim relief as the applicant mightcontemplate should be made is not what he sought in this proceeding or can seek onan appeal. If the Court were to make any order affecting the buyer, it would certainlybe granting "relief in the jurisdictional vacuum of an unpleaded claim."5 The Courtcannot do that.Decision[24] The interim order of 8 May 2020, that the judgment issued in this proceedingon 7 May 2020 is stayed, is discharged.[25] No costs were sought, and no award is made._______________________O G PaulsenAssociate Judge4 Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd, above n 3, at [22].5 At [22].Solicitors:Patient & Williams, ChristchurchYoung Hunter, Christchurch