JACK AND ANOR V CARVER AND ORS HC AK CIV 2008-404-005910

JACK AND ANOR V CARVER AND ORS HC AK CIV 2008-404-005910 27 October 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-005910BETWEEN NEIL CLARENCE JACK First Plaintiff AND NEIL CLARENCE JACK AND ALAN ROBERT JACK Second Plaintiffs AND SHIRLEY-ANNE CARVER First Defendant AND GARRY DESMOND STEWART Second Defendant AND SHIRLEY-ANNE CARVER, GARRY DESMOND STEWART AND HAYDN ASH AS TRUSTEES OF THE WHITIORA TRUST Third Defendants Hearing: 15 October 2009 Counsel: SP Bryers for plaintiffs Appearances: SA Carver, first defendant SA Carver, GD Stewart and H Ash, third defendants Judgment: 27 October 2009 at 12:30 pmJUDGMENT OF ASSOCIATE JUDGE FAIRE [on application by the plaintiffs for order that interim charging order be varied and be made final]Solicitors: RS Wood, PO Box 6422, Auckland for plaintiffs And To: SA Carver, 112 Wiseley Road, Hobsonville for defendants[1] On 23 September 2009 the plaintiffs filed an application for orders that an interim charging order be varied and be made final. [2] The application is made in reliance on r 17.59 of the High Court Rules. Rule 17.59 provides:17.59 Application to make final charging order after judgment(1) The entitled party may apply to the court to have an interim charging order made final at any time after judgment is sealed. (2) The court may make orders and give directions for the disposal of money paid into court under rule 17.57 or 17.58.[3] The interim charging order, which was sealed on 29 May 2009, provides:TO: Shirley-Anne Carver, Garry Desmond Stewart and Haydn AshTHIS COURT orders that until it discharges or finalises this order, your estate, right, title or interest in: 1. A 44 FOOT Defeavour Motor Launch named "Tenang"; and/or 2. Marina Berth C41 at West Park Marina, 18 Clearwater Cove, West Harbour, Auckland 0618 Is charged with payment of the amount for which the entitled parties, Neil Clarence Jack and Alan Robert Jack (as trustees of the Jack Family Trust) have obtained judgment.THE AMOUNT charged is $1,498,185.37 plus interest at 8.4% per annum from 14 April 2009 to date of payment.[4] What the plaintiffs seek, by way of an amendment to the charging order, is the reduction of the amount charged from $1,498,185.37, plus interest at 8.4% per annum from 14 April 2009 to the date of payment to $251,730.33, plus interest at 8.4% per annum from 14 April 2009 to the date of payment. [5] The reason for the variation of the charging order by a reduction of the amount sought to be charged is that Woodhouse J entered judgment in favour of the first plaintiff against the third defendants in the sum of $159,665, plus interest of $78,888.48 and costs and disbursements of $9,120. In addition, judgment for costs in relation to an application to discharge a freezing order in the sum $2,296.85 andcosts on an application by the plaintiffs for an order to enforce an injunction granted by the Court on 26 November 2008 in the sum of $1,760.00 was entered. The judgment is dated 14 April 2009 and was sealed on 30 April 2009. [6] The third defendants, who are unrepresented by counsel, oppose the making of the orders sought by the plaintiffs. The principal ground advanced is that the judgment is being appealed to the Court of Appeal. In addition, they complain about the effect of a mareva injunction on their ability to realise their assets. [7] On 12 August 2009 Venning J heard several applications, one of which was an application by the defendants for stay of the judgment pending the determination of an appeal which the defendants have filed to the Court of Appeal. It is, in my view, significant that Venning J recorded in his judgment that counsel for the plaintiffs had indicated an agreement:that the net proceeds of sale of any assets, after payment of secured creditors and costs of sale, could be preserved by deposit with an independent stakeholder pending the outcome of the appeal.Later in his judgment at [23] His Honour recorded:There can be no prejudice to the defendants if the properties were sold by the plaintiffs (as opposed to mortgagees) and the net proceeds of sale held pending the outcome of the appeal. It may also encourage the defendants to advance their appeal expeditiously.[8] Regrettably, the option of an orderly sale of assets and the holding of the proceeds after the payment of securities and costs has not been advanced by the defendants. That is surprising because it does seem to be the best way of ensuring the best realisation result for the defendants in respect of their assets. [9] Venning J, after reviewing the case, declined the application for stay. His Honour imposed one condition and that was that in the event that the plaintiffs sold the defendants' properties the net proceeds of sale are to be held on deposit with an independent stakeholder pending decision on appeal or further order of the Court.[10] I have already referred to the fact that the judgment in this case has been sealed. The jurisdictional condition that must be present before the Court can make a final charging order is therefore met in this case. [11] The variation sought by this application is just because it reduces the amount to the amount of the judgment which has been sealed. [12] I have carefully considered the third defendant's notice of opposition but can find no proper basis in the documents filed for refusing the orders sought by the plaintiff. It is not the function of this Court to review a judgment that has already been pronounced. That is a matter for the Court of Appeal. Further, it is not my role to review the judgment of Venning J declining a stay of the judgment of Woodhouse J. I must, and do, accept those judgments to stand for what they provide. When that is considered there is no basis for refusing the plaintiffs' application. The jurisdictional basis for the making of an order under r 17.59 exists. The condition imposed by Venning J, when he considered the stay application, in my view, provides ample protection for the defendants. The variation sought by the plaintiffs reduces the amount charged and, in fact, limits the charge to the amount of the judgment that was actually entered by Woodhouse J and sealed on 14 April 2009.Orders[13] Accordingly, I order as follows: a) The interim charging order sealed on 29 May 2009 is varied so that it provides as follows:This Court orders that until it discharges or finalises this order, your estate, right, title or interest in: 1. a 44 foot Defeavour Motor Launch named "Tenang" and/or 2. marina berth G41 at West Park Marina, 18 Clearwater Cove, West Harbour, Auckland 0618 is charged with payment of the amount for which the entitled parties, Neil Clarence Jack, and Neil Clarence Jack and AlanRobert Jack (as trustees of the Jack Family Trust) have obtained judgment. The amount charged is $251,730.33, plus interest at 8.4% per annum from 14 April 2009 to date of payment;b) The charging order is made final; c) Costs in relation to this application are reserved. _____________________ JA Faire Associate Judge