FANSHAWE 136 LTD v FANSHAWE CAPITAL LTD & ANOR [2014] NZHC 1068

FANSHAWE 136 LTD v FANSHAWE CAPITAL LTD & ANOR [2014] NZHC 1068

Clause 3(c) of the consent order excluded costs from the interlocutory stay but did not mandate immediate payment; parties had reserved rights to apply to vary the consent order; on the balance of convenience a stay of execution of the costs order was ordered because payment would irreversibly deprive the appellant of funds it could not recover if successful on appeal and the plaintiffs conceded they could not repay, so the risk of irreversible loss outweighed the plaintiffs' asserted need for funds now.

Citation
[2014] NZHC 1068
Parties
First Plaintiff/respondent: FANSHAWE 136 LIMITED; Second Plaintiff/respondent: 136 FANSHAWE LIMITED; First Defendant: FANSHAWE CAPITAL LIMITED; Second Defendant/applicant: WILSON PARKING NEW ZEALAND LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 May 2014
Procedural Posture
Civil Property Dispute (specific Performance; Estoppel) / Interlocutory Application for Stay of Execution of Costs Order Pending Appeal to Court of Appeal
Outcome
Application to stay execution of this Court's costs order granted pending determination of the appellant's appeal to the Court of Appeal (CA24/2014). Costs of this interlocutory application awarded to applicant on a 2B basis with disbursements as fixed by the Registrar; payment of those costs to await outcome of the...
Legal Topics
Stay of Execution, Consent Order Interpretation, Costs Orders, Specific Performance, Estoppel, Caveat
Civil Procedure Property Law Equity Costs Appeals Stay of Execution Consent Order Interpretation Costs Orders +3 more

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Parties

FANSHAWE 136 LIMITED

First Plaintiff/respondent

136 FANSHAWE LIMITED

Second Plaintiff/respondent

FANSHAWE CAPITAL LIMITED

First Defendant

WILSON PARKING NEW ZEALAND LIMITED

Second Defendant/applicant

Procedural Posture

Civil Property Dispute (specific Performance; Estoppel) / Interlocutory Application for Stay of Execution of Costs Order Pending Appeal to Court of Appeal

Legal Issues

  1. 1 Whether consent order clause excluding costs from stay required immediate payment of costs
  2. 2 Whether Court should exercise its discretion to stay execution of the costs order pending appeal
  3. 3 Whether plaintiffs would be unable to repay costs if the appeal succeeds and thus payment would irreversibly prejudice the appellant

Ratio Decidendi

Clause 3(c) of the consent order excluded costs from the interlocutory stay but did not mandate immediate payment; parties had reserved rights to apply to vary the consent order; on the balance of convenience a stay of execution of the costs order was ordered because payment would irreversibly deprive the appellant of funds it could not recover if successful on appeal and the plaintiffs conceded they could not repay, so the risk of irreversible loss outweighed the plaintiffs' asserted need for funds now.

Court Disposition

Application to stay execution of this Court's costs order granted pending determination of the appellant's appeal to the Court of Appeal (CA24/2014). Costs of this interlocutory application awarded to applicant on a 2B basis with disbursements as fixed by the Registrar; payment of those costs to await outcome of the...

Orders

  • Execution of the High Court costs judgment against the appellant stayed pending determination of Wilson's appeal to the Court of Appeal (CA24/2014)
  • Costs of this application to the applicant on a 2B basis together with disbursements as fixed by the Registrar