WEINE v TADD MANAGEMENT LTD [2023] NZCA 642

WEINE v TADD MANAGEMENT LTD [2023] NZCA 642 [14 December 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA239/2023[2023] NZCA 642BETWEEN RUTH RENTON WEINE AND MICHAELDAVID HOFMANN-BODY ASTRUSTEES OF THE RUTH WEINEFAMILY TRUSTAppellantsAND TADD MANAGEMENT LIMITEDRespondentCourt: Collins JCounsel: M Freeman for AppellantsF B Q Collins for RespondentJudgment:(On the papers)14 December 2023 at 9.30 amJUDGMENT OF COLLINS JThe application for a stay is granted.____________________________________________________________________REASONS[1] The appellants have applied pursuant to r 12 of the Court of Appeal (Civil)Rules 2005 to stay the execution of:(a) a decision of the High Court delivered on 5 April 2023;1 and1 Tadd Management Ltd v Weine [2023] NZHC 764 [Substantive High Court judgment].(b) a costs decision made in relation to the judgment referred to in (a).2[2] The appellants have filed an appeal from the High Court judgment deliveredon 5 April 2023. In that judgment the appellants were ordered to pay damages in thesum of $609,842.20, plus interest and costs.3[3] The damages award followed a finding by the High Court that the appellantshad misrepresented the seismic assessment rating of a building which the appellantssold to the respondent.[4] The appeal is scheduled to be heard by this Court on 12 February 2024. TheCourt is likely to deliver judgment within three months of the date of the hearing ofthe appeal.[5] In determining whether or not to grant a stay under r 12(3), the Court mustbalance the successful litigant's rights to the fruits of a judgment and "the need topreserve the position in case the appeal is successful".4 Factors to be taken intoaccount in this balancing exercise include:5(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; and2 Tadd Management Ltd v Weine [2023] NZHC 1968 [High Court costs judgment (No 1)]; and TaddManagement Ltd v Weine [2023] NZHC 2573 [High Court costs judgment (No 2)].3 Substantive High Court judgment, above n 1, at [247], [256]–[259], and [368].4 Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.5 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11] citing DymocksFranchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9].(g) the overall balance of convenience.[6] While that list does not include the apparent strength of the appeal, that hasbeen treated as an additional factor.6[7] The appellants contend that the respondent is in a precarious financial positionand that if the application to stay execution is not granted the appellants' appeal willbe rendered nugatory.[8] There are two reasons why the Court will grant the application for stay ofexecution of the judgments in question:(a) First, the second-named appellant is a partner in Gillespie YoungWatson. Gillespie Young Watson is holding on trust $1.5 million forthe appellants. Gillespie Young Watson have given an irrevocableundertaking to hold sufficient funds in trust to meet any judgmentaward plus interest and costs should the appeal be unsuccessful.(b) Second, the appeal is scheduled to be heard very soon and is likely tobe able to be determined expeditiously.[9] In these circumstances, the Court is satisfied that the overall interests of justicejustify the granting of the application for stay of execution.Solicitors:Thomas Dewar Sziranyi Letts, Lower Hutt for AppellantsBraun Bond & Lomas, Hamilton for Respondent6 Body Corporate No 188529 v North Shore City Council (No 6) HC Auckland CIV-2004-404-3230,11 February 2009 at [17].