GORDON ISRAEL V MARSDEN KEVIN BALLE AND WILMA ALBERT BALLE CA CA502/2010

GORDON ISRAEL V MARSDEN KEVIN BALLE AND WILMA ALBERT BALLE CA CA502/2010 17 August 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA502/2010 [2010] NZCA 377BETWEEN GORDON ISRAEL Applicant AND MARSDEN KEVIN BALLE AND WILMA ALBERT BALLE Respondents Hearing: 11 August 2010 Court: O'Regan P, Glazebrook and Stevens JJ Counsel: Applicant in Person D S Quinn and J D McLeay for Respondents Judgment: 17 August 2010 at 3.00 pmJUDGMENT OF THE COURT A The application for a stay is declined. B The applicant must pay the respondents costs for a standard application on a band A basis plus usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Glazebrook J)Introduction[1] Mr Israel seeks a stay of execution of the judgment of Andrews J in Israel v Balle.1 The procedural history of this matter is set out in that judgment. In brief,1 Israel v Balle HC Hamilton CIV-2010-419-686, 28 July 2010.Mr and Mrs Balle purchased a property from the Official Assignee on 18 May 2010. Mr and Mrs Balle are now the registered proprietors of the land. That property was previously owned and is currently occupied by Mr Israel. The land was not sold subject to any lease or licence to Mr Israel but the Official Assignee did not contract to provide vacant possession. The effect of the orders of Andrews J is to require Mr Israel to provide vacant possession of the land to Mr and Mrs Balle.Mr Israel's submissions[2] Mr Israel submits that a stay should be granted as the procedure in the High Court was flawed and he had no proper opportunity to put his arguments before the Court. Further, he has no other accommodation and Mr and Mrs Balle, contrary to what they said in the High Court, are still occupying another property. Mr Israel asserts further that, as the former registered proprietor of the land and lawful occupier, he is entitled by law to remain in possession of the land (or at the least of his house on the land) until he voluntarily relinquishes possession.Assessment[3] Mr Israel's appeal would not be rendered nugatory in the event a stay is not granted. Further, we accept the submission made on behalf of Mr and Mrs Balle that, as the registered proprietors of the land, they will be injuriously affected if a stay is granted. There is no significance in the fact that Mr and Mrs Balle have access to another property. As registered proprietors of the land, they are entitled to possession of the land (which includes any buildings or other fixtures attached to the land). [4] Further, there does not appear to be any obvious merit in the appeal. Despite a somewhat fraught procedural history in the High Court, Mr Israel appears to have had ample opportunity to present his case. In addition, Mr Israel is operating under a misapprehension as to the legal position. The law does not allow him to remain in possession of the land (including fixtures) until he voluntarily relinquishes it.[5] Mr Israel has indicated by notice of 13 August 2010 (received on 16 August 2010 by this Court) that he discontinues the appeal. The notice was not in proper form but his intention to discontinue being clear, this is another reason the stay must be declined.Result[6] We decline the application for a stay. [7] Mr Israel must pay the respondents costs for a standard application (on the same basis as for an application of leave to appeal) on a band A basis plus usual disbursements.Solicitors: Chatwin Legal, Hamilton for Respondents