SULLIVAN v WELLSFORD PROPERTIES LTD [2018] NZHC 708

SULLIVAN v WELLSFORD PROPERTIES LTD [2018] NZHC 708

Applying the Brook Valley balancing factors and exercising either r 12 or the Court's inherent jurisdiction, the balance of convenience favours the defendants: the stay application is declined but the Court ordered a compromise security arrangement—$57,997.97 of the costs award to remain secured in defendants' solicitor's trust account pending determination of the appeal and $30,000 released to the defendants—because defendants are entitled to the fruits of their judgment and shareholders would be injuriously affected if all funds were held.

Citation
(2018) 24 PRNZ 20
Parties
First Plaintiff: Peter Anthony Sullivan; Second Plaintiff: Port Albert Investments Limited; First Defendant: Wellsford Properties Limited; Second Defendant: Garry Edward Hannam; Third Defendant (discontinued): Sumpter Baughen Chartered Accountants Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 April 2018
Procedural Posture
Civil (costs Stay Application Pending Appeal) / Post Judgment Application
Outcome
Application for stay of execution of costs judgment declined; partial security ordered
Legal Topics
Stay of Execution, Security for Costs, Balance of Convenience, Inherent Jurisdiction
Civil Procedure Appeal Costs Stay of Execution Security for Costs Balance of Convenience Inherent Jurisdiction

Case Brief

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Parties

Peter Anthony Sullivan

First Plaintiff

Port Albert Investments Limited

Second Plaintiff

Wellsford Properties Limited

First Defendant

Garry Edward Hannam

Second Defendant

Sumpter Baughen Chartered Accountants Limited

Third Defendant (discontinued)

Procedural Posture

Civil (costs Stay Application Pending Appeal) / Post Judgment Application

Legal Issues

  1. 1 Whether to grant a stay of execution of a costs judgment pending appeal
  2. 2 Whether r 12 Court of Appeal (Civil) Rules 2005 applies where the decision appealed from is a High Court judgment not itself subject to appeal by the judgment creditor
  3. 3 Whether the High Court may exercise its inherent jurisdiction to stay enforcement of its own judgment

Ratio Decidendi

Applying the Brook Valley balancing factors and exercising either r 12 or the Court's inherent jurisdiction, the balance of convenience favours the defendants: the stay application is declined but the Court ordered a compromise security arrangement—$57,997.97 of the costs award to remain secured in defendants' solicitor's trust account pending determination of the appeal and $30,000 released to the defendants—because defendants are entitled to the fruits of their judgment and shareholders would be injuriously affected if all funds were held.

Court Disposition

Application for stay of execution of costs judgment declined; partial security ordered

Orders

  • Application for stay declined
  • Defendants entitled to enforce the costs judgment against the plaintiffs pending the plaintiffs' appeal