EDEN REFUGE TRUST and ORS v HOHEPA and ANOR HC AK CIV-2003-404-000539

EDEN REFUGE TRUST and ORS v HOHEPA and ANOR HC AK CIV-2003-404-000539

Grant a conditional stay of execution until the appeal hearing date on 7 March 2012 provided the second defendant either pays the judgment sum and awarded costs into the third plaintiff's solicitors' trust account to be held on trust for the party successful on appeal, or alternatively provides registered security...

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Citation
openlaw-c0d5433b_1576_46ec_bb9a_d0f88af91eef.pdf
Parties
First Plaintiff: Eden Refuge Trust; Second Plaintiff: Joanne Lydia Maletino; Third Plaintiff: Callum MacDonald; Fourth Plaintiff: Attorney-General; First Defendant: Charles Hohepa; Second Defendant: Charles Fletcher
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 December 2011
Procedural Posture
Civil: Enforcement of Judgment; Application for Stay of Execution Pending Appeal / Post Judgment Enforcement; Application for Stay Pending Appeal (hearing Scheduled 7 March 2012)
Outcome
Application for stay of execution granted on terms.
Legal Topics
Stay of Execution, Security for Judgment, Bankruptcy Notice, Accessory Liability, Knowing Receipt, Dishonest Assistance, Public Interest in Charity Asset Protection
Civil Procedure Bankruptcy Law Trust Law Fiduciary Duty Appeal Procedure Stay of Execution Security for Judgment Bankruptcy Notice +4 more

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Parties

Eden Refuge Trust

First Plaintiff

Joanne Lydia Maletino

Second Plaintiff

Callum MacDonald

Third Plaintiff

Attorney-General

Fourth Plaintiff

Charles Hohepa

First Defendant

Charles Fletcher

Second Defendant

Procedural Posture

Civil: Enforcement of Judgment; Application for Stay of Execution Pending Appeal / Post Judgment Enforcement; Application for Stay Pending Appeal (hearing Scheduled 7 March 2012)

Legal Issues

  1. 1 Whether to grant a stay of execution of a money judgment pending appeal
  2. 2 Whether enforcement would render the appeal nugatory (including risk of bankruptcy)
  3. 3 Whether the applicant must provide security or pay the judgment into trust pending appeal

Ratio Decidendi

Grant a conditional stay of execution until the appeal hearing date on 7 March 2012 provided the second defendant either pays the judgment sum and awarded costs into the third plaintiff's solicitors' trust account to be held on trust for the party successful on appeal, or alternatively provides registered security over realty to the judgment value; absent disclosure of financial circumstances, a stay without securing the judgment would be inappropriate because money judgments are ordinarily payable pending appeal.

Court Disposition

Application for stay of execution granted on terms.

Orders

  • Stay of execution to remain in force until the end of the day of 7 March 2012 (date of Court of Appeal hearing).
  • Second defendant to pay judgment sum of $578,725.25 plus any outstanding costs to the solicitors for the third plaintiff who will retain the funds in trust for the party successful on appeal.