DAVEY v BANK OF NEW ZEALAND [2022] NZHC 1822

DAVEY v BANK OF NEW ZEALAND [2022] NZHC 1822 [27 July 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2021-409-409[2022] NZHC 1822IN THE MATTER of an application for leave to appeal (ifrequired) and stay of proceedings/stay ofexecutionBETWEEN MATTHEW ROBERT DAVEYApplicantAND BANK OF NEW ZEALAND AND/OR ITSAGENTS IN AUSTRALIA INCLUDINGCORRS CHAMBERS WESTGARTH INSYDNEYRespondentHearing: (Determined on the Papers)Counsel: K J Sheehan for ApplicantK Paterson and C Olds for RespondentJudgment: 27 July 2022JUDGMENT OF ASSOCIATE JUDGE LESTER(Results Judgment on application for stay of enforcement)[1] At 11.21 am on 27 July 2022, counsel for Mr Matthew Davey applied on awithout notice or on a Pickwick basis for a stay of enforcement of the Judgmentobtained by the Bank of New Zealand (BNZ) on 16 July 2021. No appeal from the 16July 2021 decision has been filed.[2] Urgency was sought on the basis that if the stay was not granted by 5pm on27 July 2022, Mr Davey would be bankrupted in the Federal Court of Australia.[3] It is highly unsatisfactory the application for a stay is made at the eleventhhour. The bankruptcy proceedings have been before the Federal Court since at least23 June 2022 when an initial adjournment was granted (for how long I am not told)and then a further adjournment by consent until 28 July 2022. As Mr Davey is residentin Sydney Australia the BNZ obtained leave on 13 September 2021 to issue abankruptcy notice to be issued by this Court against Mr Davey.1 Mr Davey wasrepresented in that application so has been aware of the need for a stay for an extendedperiod. It is no answer to say as Mr Davey suggests that responsibility for a stay notbeing sought earlier or the failure to apply for leave to appeal out of time (or anextension of time to appeal) rests with his previous solicitors - his present solicitorswere instructed in late April 2022. Judge Paulsen in a Minute in this proceeding dated4 May 2022 noted Ms Sheehan's advise that Mr Davy may apply for leave to appeal.[4] A telephone conference was held at 4pm on 27 July 2022 to address the stayapplication on a Pickwick basis. Time does not allow for a full decision on the stayapplication, hence this Results Judgment.[5] Counsel for the BNZ however agreed to an adjournment of the bankruptcyapplication in Australia for 10 working days overtaking the need for the presentapplication.[6] The application for an interim stay of enforcement of the Judgment dated16 July 2022 and the associated costs Judgment of 13 August 2021 is declined.In short, the order made on 16 July 2021 has not been appealed, even though it wasmade over a year ago and the bankruptcy proceedings have been before the Federal1 Bank of New Zealand v Davey [2021] NZHC 2390.Court twice. An appeal does not operate as a stay- here there is no appeal onlya statement of intention to appeal. The delay in bringing an appeal coupled with thedelay in applying for a stay stand squarely against the application. I am left with theimpression that the timing of this application was intended to force the Court's handto grant a stay. However, beyond the urgency created by Mr Davey's own delays, thestay application in my view lacks merit.[7] Costs on this application are reserved.________________________________Associate Judge LesterSolicitors:Kate Sheehan Lawyers, Auckland (for Applicant)Buddle Findlay (for Respondent)