SMITH v LAND INFORMATION NEW ZEALAND [2023] NZCA 434

SMITH v LAND INFORMATION NEW ZEALAND [2023] NZCA 434 [8 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA432/2023[2023] NZCA 434BETWEEN DENNIS ARTHUR SMITHApplicantAND LAND INFORMATION NEW ZEALANDRespondentCourt: Cooper P and Goddard JCounsel: Applicant in personG J C Carter for RespondentJudgment:(On the papers)8 September 2023 at 11.00 amJUDGMENT OF THE COURTA The application for a stay is declined.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] Land Information New Zealand (LINZ) administers surplus railway land inNew Zealand, including land at 2A Para Street, Taumarunui (the property). Mr Smithpresently occupies that property. LINZ sought summary judgment in the High Courtfor possession of the property. On 4 July 2023 Associate Judge Brittain enteredjudgment for LINZ (High Court judgment) on the following terms:1(a) A declaration that LINZ is entitled to possession of the property.(b) An order that Mr Smith, together with any other person occupying theproperty, vacate the property within five working days of delivery ofthe judgment.(c) Mr Smith shall pay LINZ's costs for all steps in the proceeding on a 2Bbasis, together with disbursements, as fixed by the Registrar.[2] On 7 July 2023 Mr Smith applied to the High Court for a stay of enforcementof the High Court judgment. At a telephone conference on 10 July 2023 the Judgegranted an interim stay of enforcement pending further order of the Court. Mr Smith'sapplication for a stay was heard on 7 August 2023. On 11 August 2023 the Judgedelivered a judgment declining to grant a stay (stay judgment).2 The Judge confirmedthe declaration and order given in the High Court judgment, and made orders requiringMr Smith to vacate the property by 12.00 pm on 11 September 2023, on certain termsincluding the following:3(d) The defendant shall vacate the property at 2A Para Street,Taumarunui, by 12 pm on 11 September 2023, on the following terms:(i) the defendant shall remove his house truck and any othervehicles from the property;(ii) the defendant shall remove all of his chattels and possessionsfrom the property, including all machinery, subject to theexception below in para (d)(iii);(iii) the defendant may leave his four shipping containers in situon the property, provided that the shipping containers areemptied of all contents by 12 pm on 11 September 2023;(iv) the defendant shall have no further access to the shippingcontainers, other than as provided below in para (d)(v);1 Land Information New Zealand v Smith [2023] NZHC 1700 at [51].2 Land Information New Zealand v Smith [2023] NZHC 2147.3 At [24].(v) if the defendant wishes to remove the shipping containersfrom the property after 11 September 2023, he shall firstobtain the plaintiff's written consent to access the property forthe purpose of removing the shipping containers, and removethe shipping containers on the terms reasonably imposed bythe plaintiff in writing; and(vi) if the shipping containers are removed, the defendant shallhave no right to return the shipping containers to the property.(e) Any other person on the land must vacate the land immediately.(f) Pending determination of the defendant's appeal of the judgment,LINZ shall not:(i) lease the property at 2A Para Street, Taumarunui, to any party,or grant any right to any party to possess or occupy theproperty; or(ii) remove or alter any of the buildings on the property.(g) The orders as to interim relief in paras (d) and (f) are conditional onthe defendant pursuing his appeal to the Court of Appeal withdiligence, and leave is granted to LINZ to seek a variation orrevocation of these orders if the defendant fails to comply with thiscondition.(h) If there is any dispute regarding implementation of these orders, thenleave is reserved to the parties to seek further orders from the Court.[3] On 2 August 2023, shortly before his application for a stay was heard in theHigh Court, Mr Smith filed an appeal to this Court from the High Court judgment.[4] On 4 September 2023 Mr Smith applied to this Court for a stay of enforcementof the High Court judgment pending appeal. He says that his appeal would be renderednugatory if a stay is not granted. He says that if he is required to move out of theproperty, and move all his tools and other assets out of the buildings on the property,then move them back in again if his appeal is successful, he will suffer a substantialloss. By comparison, he says, the potential costs to LINZ from any stay would besmall.[5] Mr Smith filed an affidavit in this Court in support of his application for a stay,which attached a copy of an affidavit from Mr Adrian Leineweber dated 16 August2023 which Mr Smith wished to file in support of his High Court stay application.It appears he encountered some difficulties in doing so. Mr Leineweber's affidavitexpresses an opinion on the value of the tools and other items at the property.[6] The application for a stay is opposed by LINZ, essentially on the grounds reliedon by the Judge in declining a stay. LINZ says that the terms on which the Judge madehis orders are sufficient to protect Mr Smith's interests pending his appeal.Accordingly, the outcome of Mr Smith's appeal would not be rendered nugatory if thisCourt declined Mr Smith's stay application.[7] Mr Smith filed a memorandum in reply dated 6 September 2023. In it heessentially repeats the arguments he advanced in making the application. He says thatalthough it is technically true that the appeal would not be rendered nugatory if a stayis declined, that is not true practically. He emphasises the cost of moving more thanone hundred machines and more than half a dozen van and trailer loads of family trustassets, and the impact (personal and financial) that would have on him.[8] We have carefully reviewed all the material filed by the parties. We are notpersuaded that enforcement of the judgment will render Mr Smith's appeal nugatory.The prospects of success for the appeal do not appear strong. We agree with the Judgethat a stay is not appropriate, essentially for the reasons he gave. The orders made bythe Judge when declining the stay strike a fair balance between the interests ofMr Smith and LINZ pending the hearing of Mr Smith's appeal.Result[9] The application for a stay is declined.[10] There is no order as to costs.Solicitors:BVA The Practice, Palmerston North for Respondent