BANKS AND ANOR v GREY DISTRICT COUNCIL [2015] NZCA 495

BANKS AND ANOR v GREY DISTRICT COUNCIL [2015] NZCA 495 [21 October 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA460/2013CA667/2013[2015] NZCA 495BETWEEN DOUGLAS BANKS AND CHRISTINESANDRA BANKSAppellantsAND GREY DISTRICT COUNCILRespondentCourt: Ellen France P, Harrison and Winkelmann JJCounsel: Appellants in personJ Shackleton and J Pannett for RespondentJudgment:(On the papers)21 October 2015 at 2.30 pmJUDGMENT OF THE COURTA The application to reduce the costs awarded in this Court is declined.B The application to stay the execution of the costs awarded in this Court is granted on the terms set out at [6].____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] On 8 September 2015 this Court issued judgment dismissing Mr and Mrs Banks' appeal against judgment of Fogarty J determining that Mr andMrs Banks were bound by the terms of their lease with the Grey District Council, and obliged to pay arrears under that lease.1 Mr and Mrs Banks were ordered to pay1 Banks v Grey District Council [2015] NZCA 417.the Council one set of costs for the appeal on a band A basis, with a certificate for second counsel. The Banks have now applied for an order to reduce the costs awarded and to stay the execution of costs awarded until an appeal to the Supreme Court is determined. They have applied for leave to appeal, and the issue of leave is yet to be determined.[2] The application for a reduction of costs is opposed by the Council. In respect of the application for a stay however the Council indicates that if the Court is minded to grant a stay it will consent to orders on certain terms.[3] We decline Mr and Mrs Banks' application for a reduction of costs. The issueof costs was argued before us and was determined in our judgment of 8 September 2015. There is no basis for us to revisit that issue.[4] In relation to the application for a stay, the Banks say that unless the costs awarded against them are stayed they will lose the ability to pursue their application for leave to appeal to the Supreme Court. Mrs Banks has filed an affidavit in which she says that enforcement of the costs awards will result in them losing their home, and will deprive them of any means to pursue the appeal.[5] In determining an application for stay under r 30 of the Supreme Court Rules 2004, two considerations must be balanced: first, a successful litigant should not be deprived of the fruits of litigation, and second, an appellant should not be deprived of the fruits of a successful appeal.2[6] It is relevant that the stay sought is only in relation to the costs awarded against the Banks. A refusal to stay the judgment to this extent will deprive the Banks of the ability to pursue the appeal. Given that the Council does not oppose this limited stay we are satisfied that a stay of the enforcement of the costs awarded by this Court should be granted on the following terms:2 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [SR30.01] and [CR12.01](1)(a); Sophie Young (ed) Sim's Court Practice (looseleaf ed, LexisNexis) at [CAR12.6].(a) if the application for leave to appeal to the Supreme Court is declined, the stay continues only until the date of the Supreme Court's decisionon the leave application; and(b) if the application for leave to appeal is granted, the stay continuesuntil the date of the Supreme Court's decision on the substantiveappeal.Solicitors:Simpson Grierson, Wellington for Respondent