CHARLES REX LUSCOMBE & ORS v O'SULLIVAN & ORS HC NWP CIV 2010-443-000073

CHARLES REX LUSCOMBE & ORS v O'SULLIVAN & ORS HC NWP CIV 2010-443-000073

The plaintiffs failed to establish that enforcement of the costs order would render the appeal nugatory or that there were special circumstances justifying a stay: there was no evidential basis showing the estate lacked funds or plaintiffs' personal inability to fund the appeal, the case was not a novel 'test case' warranting different treatment, and the defendants would be prejudiced by deferral of their entitlement to costs; accordingly the discretionary balance favoured dismissal of the stay application.

Citation
openlaw-06747e41_c4e1_45de_8245_713482afceb6.pdf
Parties
Plaintiffs: Charles Rex Luscombe; Dorothy Turner; Kathleen Whyte (executors and trustees of the will of Winifred Anne Luscombe, deceased); First Defendant: Dillon O'Sullivan; Second Defendant: Kelvin John Syms; Third Defendant: Simon Robert Purvis; Fourth Defendant: Andre Gaylard; Fifth Defendant: Bret Paul Jackson; Sixth Defendant: Kenneth David Swain; Seventh Defendant: Donald Francis Curtin; Eighth Defendant: John Perris
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 May 2012
Procedural Posture
Civil Proceeding — Application for Stay of Enforcement of Costs Judgment Pending Appeal / Application to High Court for Stay of Execution of Costs Order Pending Appeal (appeal Filed; Hearing of Appeal Scheduled)
Outcome
Application for stay of enforcement of costs order dismissed
Legal Topics
Stay of Execution, Summary Judgment, Costs Orders, Directors' Duties, Test Case Concept
Civil Procedure Trusts Company Law Costs Law Appeal Procedure Stay of Execution Summary Judgment Costs Orders +2 more

Case Brief

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Parties

Charles Rex Luscombe; Dorothy Turner; Kathleen Whyte (executors and trustees of the will of Winifred Anne Luscombe, deceased)

Plaintiffs

Dillon O'Sullivan

First Defendant

Kelvin John Syms

Second Defendant

Simon Robert Purvis

Third Defendant

Andre Gaylard

Fourth Defendant

Bret Paul Jackson

Fifth Defendant

Kenneth David Swain

Sixth Defendant

Donald Francis Curtin

Seventh Defendant

John Perris

Eighth Defendant

Procedural Posture

Civil Proceeding — Application for Stay of Enforcement of Costs Judgment Pending Appeal / Application to High Court for Stay of Execution of Costs Order Pending Appeal (appeal Filed; Hearing of Appeal Scheduled)

Legal Issues

  1. 1 Whether to grant a stay of enforcement of a costs judgment pending appeal
  2. 2 Whether the appeal would be rendered nugatory by enforcement of the costs order
  3. 3 Whether plaintiffs bona fides and ability to prosecute appeal justify a stay

Ratio Decidendi

The plaintiffs failed to establish that enforcement of the costs order would render the appeal nugatory or that there were special circumstances justifying a stay: there was no evidential basis showing the estate lacked funds or plaintiffs' personal inability to fund the appeal, the case was not a novel 'test case' warranting different treatment, and the defendants would be prejudiced by deferral of their entitlement to costs; accordingly the discretionary balance favoured dismissal of the stay application.

Court Disposition

Application for stay of enforcement of costs order dismissed

Orders

  • Application to stay dismissed
  • Costs of this application awarded to fifth and sixth defendants on a scale 2B basis