DOBSON v MILLOY & ORS [2014] NZHC 3368

DOBSON v MILLOY & ORS [2014] NZHC 3368

The stay was granted because the Milloy Trusts demonstrated arguable grounds of appeal and a real risk that, if enforcement continued, their appellate rights would be rendered nugatory by the plaintiff's likely inability to repay if the appeals succeed; on balance of convenience this favoured granting the stay.

Citation
[2014] NZHC 3368
Parties
Plaintiff/counterclaim Defendant: Kerry Bryan Dobson; First Defendants/counterclaim Plaintiffs: Hugh Milloy and Helen Ruth Milloy as Trustees of the Hugh Milloy Family Trust; Second Defendants/counterclaim Plaintiffs: Hugh Milloy and Helen Ruth Milloy as Trustees of the Helen Milloy Family Trust; Counterclaim Defendant: Clusevau Holdings Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 December 2014
Procedural Posture
Civil Contract/guarantee / Stay Application Pending Appeal (post Judgment)
Outcome
Stay of enforcement of the orders and judgment dated 11 July 2014 and 25 September 2014 granted until determination of the appeals.
Legal Topics
Stay of Execution, Appeal, Guarantee Liability, Balance of Convenience, Judgment Enforcement
Civil Procedure Contract Trusts Appeal Security for Judgment Guarantee Stay of Execution Guarantee Liability +2 more

Case Brief

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Parties

Kerry Bryan Dobson

Plaintiff/counterclaim Defendant

Hugh Milloy and Helen Ruth Milloy as Trustees of the Hugh Milloy Family Trust

First Defendants/counterclaim Plaintiffs

Hugh Milloy and Helen Ruth Milloy as Trustees of the Helen Milloy Family Trust

Second Defendants/counterclaim Plaintiffs

Clusevau Holdings Limited

Counterclaim Defendant

Procedural Posture

Civil Contract/guarantee / Stay Application Pending Appeal (post Judgment)

Legal Issues

  1. 1 Whether to grant a stay of execution pending appeal
  2. 2 Whether there is a serious risk the plaintiff will be unable to repay the judgment if defendants succeed on appeal
  3. 3 Balance of convenience between allowing plaintiff to enjoy judgment and protecting defendants' appellate rights

Ratio Decidendi

The stay was granted because the Milloy Trusts demonstrated arguable grounds of appeal and a real risk that, if enforcement continued, their appellate rights would be rendered nugatory by the plaintiff's likely inability to repay if the appeals succeed; on balance of convenience this favoured granting the stay.

Court Disposition

Stay of enforcement of the orders and judgment dated 11 July 2014 and 25 September 2014 granted until determination of the appeals.

Orders

  • Stay of enforcement of the orders and judgment made on 11 July 2014 and 25 September 2014 until determination of the appeals