HINTON V SMITH AND ORS HC HAM CIV-2007-419-001047

HINTON V SMITH AND ORS HC HAM CIV-2007-419-001047

The stay was refused because the agents' appeal rights would not be rendered nugatory by compliance with the judgment (the orders primarily impose a financial obligation recoverable if the agents succeed), there was no demonstrated insolvency or compelling prejudice, bona fides could not be impugned sufficiently, and the balance of convenience favored carrying the judgment into effect while holding a modest residual fund for the plaintiffs pending appeal; limited relief granted to defer repurchase by 14 days and to hold plaintiffs' residual damages pending appeal.

Citation
openlaw-ec6e1dc9_02f1_48b8_a88c_fa96b4078594.pdf
Parties
Plaintiffs: Rodger Clarence Hinton; Raewyn Julie Hinton; First Defendants: Selwyn Thomas Smith; Nancy Lois Smith; Second Defendant: J B Aubin Realty Limited; Third Defendant: Edwin Alexander Donnithorne
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 October 2009
Procedural Posture
Civil Contractual Dispute (misrepresentation) and Stay Application Following Judgment / Post Judgment Stay Application; Appeals Filed
Outcome
Stay application by second and third defendants declined except for partial stay of payment to plaintiffs; Smiths' obligation to re-purchase deferred for 14 days; judgment varied to allow associated parties to bid at auction; plaintiffs awarded costs against second and third defendants on a 2B basis.
Legal Topics
Misrepresentation, Rescission, Contributory Negligence, Stay Pending Appeal, Damages Quantification, Contractual Remedies Act S9, Auction Sale of Disputed Property
Contract Law Civil Procedure Equitable Remedies Appellate Procedure Misrepresentation Rescission Contributory Negligence Stay Pending Appeal +3 more

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Parties

Rodger Clarence Hinton; Raewyn Julie Hinton

Plaintiffs

Selwyn Thomas Smith; Nancy Lois Smith

First Defendants

J B Aubin Realty Limited

Second Defendant

Edwin Alexander Donnithorne

Third Defendant

Procedural Posture

Civil Contractual Dispute (misrepresentation) and Stay Application Following Judgment / Post Judgment Stay Application; Appeals Filed

Legal Issues

  1. 1 Whether a stay of the judgment should be granted pending appeal
  2. 2 Whether complying with the judgment would render the appeal nugatory
  3. 3 Whether funds awarded to plaintiffs should be paid or held pending appeal

Ratio Decidendi

The stay was refused because the agents' appeal rights would not be rendered nugatory by compliance with the judgment (the orders primarily impose a financial obligation recoverable if the agents succeed), there was no demonstrated insolvency or compelling prejudice, bona fides could not be impugned sufficiently, and the balance of convenience favored carrying the judgment into effect while holding a modest residual fund for the plaintiffs pending appeal; limited relief granted to defer repurchase by 14 days and to hold plaintiffs' residual damages pending appeal.

Court Disposition

Stay application by second and third defendants declined except for partial stay of payment to plaintiffs; Smiths' obligation to re-purchase deferred for 14 days; judgment varied to allow associated parties to bid at auction; plaintiffs awarded costs against second and third defendants on a 2B basis.

Orders

  • Decline stay application insofar as it relates to orders for re-purchase by the Smiths, re-sale of the units, and the agents' contributions to those costs
  • Defer the Smiths' obligation to complete the re-purchase for 14 days from delivery of judgment to permit formal demand on the agents