BALLANTYNE TRUSTEES LTD and ORS v PAPPRILL HADFIELD & ALDOUS SOLICITORS NOMINEE COMPANY LTD and ORS [2017] NZHC 937

BALLANTYNE TRUSTEES LTD and ORS v PAPPRILL HADFIELD & ALDOUS SOLICITORS NOMINEE COMPANY LTD and ORS [2017] NZHC 937

The stay was refused because the appeal would not be rendered nugatory by release of the security, applicants assumed the risk of non-recovery when commencing proceedings, the funds were court-ordered security intended to protect respondents from non-payment, the application was not timely, and the balance of convenience favoured maintaining the orders; therefore the order directing Bell Gully to pay out the funds stands and the applicants must pay costs to the second respondents on a 2B basis.

Citation
[2017] NZHC 937
Parties
Applicants: Ballantyne Trustees Limited; A N Head; B R Head; Calmwater Enterprises Pty Limited; S B Keung as trustee of the GBR Trust; First Respondent: Papprill Hadfield & Aldous Solicitors Nominee Company Limited; Second Respondents: D D Crichton; K A Horne
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 May 2017
Procedural Posture
Application for Stay of Costs Orders Under the Companies Act 1993 / High Court Interlocutory Application (stay Pending Appeal)
Outcome
Application for stay dismissed; order directing Bell Gully to release funds stands; applicants to pay costs to second respondents on a 2B basis plus disbursements; no costs order against first respondent.
Legal Topics
Stay of Execution, Security for Costs, Liquidators' Liability, Appeal
Companies Law Civil Procedure Costs Stay of Execution Security for Costs Liquidators' Liability Appeal

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Parties

Ballantyne Trustees Limited; A N Head; B R Head; Calmwater Enterprises Pty Limited; S B Keung as trustee of the GBR Trust

Applicants

Papprill Hadfield & Aldous Solicitors Nominee Company Limited

First Respondent

D D Crichton; K A Horne

Second Respondents

Procedural Posture

Application for Stay of Costs Orders Under the Companies Act 1993 / High Court Interlocutory Application (stay Pending Appeal)

Legal Issues

  1. 1 Whether to grant a stay of the Court's costs judgments pending appeal
  2. 2 Whether security for costs held by stakeholder should be released to respondents
  3. 3 Whether the balance of convenience and timeliness favour granting a stay

Ratio Decidendi

The stay was refused because the appeal would not be rendered nugatory by release of the security, applicants assumed the risk of non-recovery when commencing proceedings, the funds were court-ordered security intended to protect respondents from non-payment, the application was not timely, and the balance of convenience favoured maintaining the orders; therefore the order directing Bell Gully to pay out the funds stands and the applicants must pay costs to the second respondents on a 2B basis.

Court Disposition

Application for stay dismissed; order directing Bell Gully to release funds stands; applicants to pay costs to second respondents on a 2B basis plus disbursements; no costs order against first respondent.

Orders

  • Stay application dismissed
  • Order of 27 April 2017 directing Bell Gully to release $25,000 to each respondent stands