HOOLE AND ANOR V DARBY AND ORS HC AK CIV-2006-404-005235

HOOLE AND ANOR V DARBY AND ORS HC AK CIV-2006-404-005235

The defendants failed to establish that the appeal would be rendered nugatory or that the balance of convenience required a stay; there was insufficient present security and the defendants have not shown the appeal is so likely to succeed or that insolvency steps would irreparably defeat the appeal. The plaintiffs' right to execute their judgment can coexist with the defendants pursuing the appeal; accordingly the stay is refused.

Citation
openlaw-1ed1da87_bd88_4a0d_9e1c_237a6cd4a350.pdf
Parties
First Plaintiff (receiver and Manager of Hillcrest Services Limited): Gareth Russel Hoole; First Plaintiff (receiver and Manager of Hillcrest Services Limited): Kevin David Pitfield; First Plaintiff (company in Receivership): Hillcrest Services Limited (In Receivership); First Defendant: Patrick Antony Darby; Second Defendant: Bronwyn Estate Limited; Third Defendant: Barrys Car Sales Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 May 2007
Procedural Posture
High Court Civil (costs and Interlocutory Application) / Interlocutory Application for Stay of Execution of Costs Order Pending Appeal
Outcome
Application for stay of execution dismissed
Legal Topics
Stay of Execution, Indemnity Costs, Appeal, Security for Costs, Bankruptcy and Liquidation Proceedings, Balance of Convenience
Civil Procedure Costs Insolvency and Bankruptcy Receivership Stay of Execution Indemnity Costs Appeal Security for Costs +2 more

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Parties

Gareth Russel Hoole

First Plaintiff (receiver and Manager of Hillcrest Services Limited)

Kevin David Pitfield

First Plaintiff (receiver and Manager of Hillcrest Services Limited)

Hillcrest Services Limited (In Receivership)

First Plaintiff (company in Receivership)

Patrick Antony Darby

First Defendant

Bronwyn Estate Limited

Second Defendant

Barrys Car Sales Limited

Third Defendant

Procedural Posture

High Court Civil (costs and Interlocutory Application) / Interlocutory Application for Stay of Execution of Costs Order Pending Appeal

Legal Issues

  1. 1 Whether a stay of execution of a costs order should be granted pending appeal
  2. 2 Whether the defendants' appeal would be rendered nugatory if execution allowed
  3. 3 Whether plaintiffs are effectively secured for their costs by receivership assets

Ratio Decidendi

The defendants failed to establish that the appeal would be rendered nugatory or that the balance of convenience required a stay; there was insufficient present security and the defendants have not shown the appeal is so likely to succeed or that insolvency steps would irreparably defeat the appeal. The plaintiffs' right to execute their judgment can coexist with the defendants pursuing the appeal; accordingly the stay is refused.

Court Disposition

Application for stay of execution dismissed

Orders

  • Application for stay of execution dismissed
  • Plaintiffs awarded costs against the defendants jointly and severally on a Category 2B basis and entitled to disbursements