WOOTTON v WOOTTON [2020] NZCA 478

WOOTTON v WOOTTON [2020] NZCA 478 [5 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA566/2020[2020] NZCA 478BETWEEN MARGARET ANN WOOTTONApplicantAND PHILLIP GARRY WOOTTONRespondentCourt: Brown JCounsel: Applicant in personE J Collins for RespondentJudgment:(On the papers)5 October 2020 at 10.10 amReasons: 7 October 2020 at 4.00 pmJUDGMENT OF BROWN JThe application for a stay of proceedings pending the determination of anapplication for leave to appeal under s 56(5) of the Senior Courts Act 2016 fromthe judgment [2020] NZHC 2584 is declined.____________________________________________________________________REASONSIntroduction[1] Ms Wootton applies under r 12(3)(a) of the Court of Appeal (Civil) Rules 2005(the Rules) for an order staying proceedings in the High Court in CIV-2020-485-300pending the determination of an application for leave to appeal under s 56(5) of theSenior Courts Act 2016 (the Act) from a judgment of the High Court delivered on1 October 2020.1[2] The application for a stay was filed on the morning of 5 October 2020 seekingurgency for the reason that Ms Wootton's application under s 143 of the Land TransferAct 2017 to sustain certain caveats was set down for hearing in the High Court atWellington that day. In the circumstances I delivered a results judgment with reasonsto follow. These are the reasons.Background[3] Mr E J Collins is counsel for the respondent, the applicant's former husband,in the caveat proceeding. Ms Wootton's application for an order prohibitingMr Collins from continuing to act for the respondent in the caveat proceeding wasdeclined by Associate Judge Johnston on 25 September 2020.[4] The applicant then filed an urgent without notice interlocutory application inthe caveat proceeding seeking the following orders:(a) applying for the transfer of the proceeding to a High Court Judge;(b) adjourning the 5 October 2020 hearing date pending the New ZealandLaw Society's (NZLS) decisions of the joint complaints before itregarding Mr Eugene Collins and Mr Lloyd Collins;(c) restraining Mr Eugene Collins pending the outcome of the NZLS andLand Information New Zealand (LINZ) complaints process;(d) allocating a further case management conference for reschedulinga hearing date for the caveat application;1 Wootton v Wootton [2020] NZHC 2584.(e) varying the order for the proceeds of sale of one of the properties sothat the monies currently held in the trust account may be held by theCourt; and(f) seeking leave to appeal to this Court in the event that the applicationwas not granted.[5] Following a hearing at short notice (the Judge having declined to deal with theapplication on a without notice basis) Edwards J concluded there was no basis eitherto restrain Mr Collins from acting or to adjourn the 5 October 2020 hearing.The application was accordingly declined.[6] Ms Wootton's application for leave to appeal to this Court under s 56(3) of theAct was also declined by Edwards J.The application for a stay of proceedings[7] On the morning of 5 October 2020 the applicant filed in this Court thefollowing documents:• an urgent application for leave to appeal to this Court from the judgmentof Edwards J;• an affidavit of the applicant in support of the application for leave toappeal; and• an urgent application for a stay of proceeding pending the determination ofthe application for leave to appeal.There was no indication that the papers had been served on the respondent.[8] The grounds for the stay were expressed in the application as follows:2 The grounds for the application are the Court of Appeal should grantme a stay of proceedings as this is an appeal against a judgment declining atransfer of proceedings to a High Court judge for an injunction for relief.3 The injunction is necessary to prevent fraud and a continuingcontravening of rules that have affected my application to sustain caveats andthe integrity and security of the Landonline system.4 Complaints determinations are pending with the Law Society on thesematters and earlier complaints on conduct matters for independence inlitigation matters.Principles to be applied on stay application[9] In determining whether or not to grant a stay under r 12(3), the Court mustweigh the factors "in the balance" between the successful litigant's rights to the fruitsof a judgment and "the need to preserve the position in case the appeal is successful".2Factors to be taken into account in this balancing exercise include:3(a) whether the appeal may be rendered nugatory by the lack of a stay;(b) the bona fides of the applicant as to the prosecution of the appeal;(c) whether the successful party will be injuriously affected by the stay;(d) the effect on third parties;(e) the novelty and importance of questions involved;(f) the public interest in the proceeding; and(g) the overall balance of convenience.While that list does not include the apparent strength of the appeal, that is treated asan additional factor.Analysis[10] The grounds of appeal describe the proposed appeal as being against ajudgment declining a transfer of proceeding to a High Court Judge for an injunction,2 Duncan v Osborne Building Ltd [1992] 6 PRNZ 85 (CA) at 87.3 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].namely to restrain Mr Collins from appearing as counsel. The request for a transfer ofthe proceeding to a High Court Judge was the first of the orders sought in the HighCourt.4 It was addressed by Edwards J in this way:[7] The first order seeks transfer of the proceeding to a High Court Judge.As I understand Ms Wootton's submission, this order does not relate to thecaveat proceeding, but to the application to restrain Mr Eugene Collins fromacting. Her concern was to ensure that there was jurisdiction for the injunctionapplication to be determined. The application having been referred to me fordetermination, this order is not necessary.[11] The Judge proceeded to consider the application for restraint of Mr Collinswhich was the third of the orders sought by Ms Wootton. The Judge correctly notedthat the inherent jurisdiction to restrain counsel from acting for a particular party is tobe exercised sparingly, the threshold for removal being a high one.5[12] On this issue the Judge concluded:[13] Ms Wootton is unable to meet this high threshold. She was reluctantto disclose the details of the complaint regarding Mr Eugene Collins, sayingit was a matter for the NZLS to investigate. As best I can tell, the core of thecomplaint relates to Mr Eugene Collins' role as director of a trustee company.That trustee company, together with Mr Wootton, own one of the propertiesthe subject of the caveat application to be heard on Monday, 5 October 2020.The trust was set up after Mr and Mrs Wootton separated. That falls far shortof what is required to restrain an opposing counsel from acting.[13] The consequence of Edwards J having received and considered the applicationfor restraint would appear to provide an answer to the ground in the application forstay which complains of a failure of a transfer of the proceeding to a High Court Judge.In reality the focus of the proposed appeal to this Court must be the decision ofEdwards J to decline to grant an injunction restraining Mr Collins from acting.[14] The present case is different from the more usual scenario where an appellantseeks to prevent a judgment being enforced pending an appeal against that judgment.Here Ms Wootton effectively seeks a postponement of her own application to sustainher caveats until such time as the Law Society has had the opportunity to consider4 At [4(a)] above.5 Wootton v Wootton, above n 1, at [12].complaints she has made about Mr Collins, the contents of which are not before theCourt.[15] As the judgment which it is sought to appeal was an interlocutory decision,leave to appeal is required. Leave to appeal to this Court from an interlocutorydecision of the High Court should only be granted where the significance orimplications of an arguable error of fact or law, either for the particular case or for theapplicant or as a matter of precedent, warrant the further delay which the appealprocess would involve.6[16] Having regard to the high threshold for the making of an order restrainingcounsel from acting, it is not apparent to me how the present circumstances wouldsupport a grant of leave under s 56(5). Both the Associate Judge and Edwards Jconsidered that the circumstances of the case fell well short of the threshold.Edwards J declined leave to appeal under s 56(3).[17] While I accept that declining a stay will in all probability remove any prospectof Ms Wootton obtaining an order restraining Mr Collins from appearing on the caveatmatter, I consider that the prospects of her (a) obtaining leave to appeal and (b)succeeding on appeal in obtaining an injunction are remote.[18] On the other side of the scales, the grant of a stay would have the effect ofgranting a de facto adjournment of Ms Wootton's application for an order to sustainthe caveats which she has registered. That is neither in the interests of the respondentnor the public interest. There does not appear to have been an undertaking as todamages lodged by Ms Wootton which would be available to respond to any losswhich the respondent might suffer flowing from the retention of the caveats on thetitles of the relevant properties.[19] Weighing these several considerations I consider that this is not an appropriatecase for the grant of a stay of Ms Wootton's application to sustain caveats. The balanceof convenience lies strongly in favour of the respondent.6 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].Result[20] The application for a stay of proceedings pending the determination of anapplication for leave to appeal under s 56(5) of the Act from the judgment [2020]NZHC 2584 is declined.Solicitors:Collins & May Law, Lower Hutt for Respondent