GILLIBRAND v SWANEPOEL [2018] NZHC 2700

GILLIBRAND v SWANEPOEL [2018] NZHC 2700

The Court refused an immediate stay of execution; instead it adjourned the stay application while permitting the judgment creditor to commence enforcement steps, subject to reserve of leave to relist the stay if enforcement steps would 'bite' before the costs appeal is resolved, because enforcement against trust assets is complex and may require court orders and bankruptcy adjudication can be halted under s 42, so the balance of convenience favored allowing enforcement to commence but protecting the appellants from irreversible loss pending appeal.

Citation
[2018] NZHC 2700
Parties
First Plaintiff and Second Plaintiff: Christian John Gillibrand; First Plaintiff: Mary Caecilia Gillibrand; First Defendant: George Peter Swanepoel; Second Defendant: Andrew Peter Holgate
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 October 2018
Procedural Posture
Civil Professional Negligence Proceeding With Costs Judgment Enforcement and Appeals to the Court of Appeal / Application for Stay of Execution Pending Appeal (appeal on Liability Heard by Court of Appeal; Appeal on Costs Filed; Stay Application Heard on the Papers)
Outcome
Application to stay enforcement adjourned; enforcement permitted to commence; leave reserved to relist the stay application or halt bankruptcy/adverse enforcement if enforcement steps would bite before the costs appeal is determined; provisional view no costs order on this interlocutory application
Legal Topics
Stay of Execution, Enforcement of Costs Judgment, Appeal Procedure, Trustee Indemnity and Subrogation, Bankruptcy Stay Under Insolvency Statute, Balance of Convenience
Civil Procedure Professional Negligence Trusts Law Insolvency Law Costs Law Stay of Execution Enforcement of Costs Judgment Appeal Procedure +3 more

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Parties

Christian John Gillibrand

First Plaintiff and Second Plaintiff

Mary Caecilia Gillibrand

First Plaintiff

George Peter Swanepoel

First Defendant

Andrew Peter Holgate

Second Defendant

Procedural Posture

Civil Professional Negligence Proceeding With Costs Judgment Enforcement and Appeals to the Court of Appeal / Application for Stay of Execution Pending Appeal (appeal on Liability Heard by Court of Appeal; Appeal on Costs Filed; Stay Application Heard on the Papers)

Legal Issues

  1. 1 Whether a stay of execution pending appeal should be granted against a costs judgment
  2. 2 Whether enforcement against trust assets is available to the judgment creditor and by what process (trustee indemnity and subrogation)
  3. 3 Whether enforcement would render any appeal nugatory or cause irremediable prejudice

Ratio Decidendi

The Court refused an immediate stay of execution; instead it adjourned the stay application while permitting the judgment creditor to commence enforcement steps, subject to reserve of leave to relist the stay if enforcement steps would 'bite' before the costs appeal is resolved, because enforcement against trust assets is complex and may require court orders and bankruptcy adjudication can be halted under s 42, so the balance of convenience favored allowing enforcement to commence but protecting the appellants from irreversible loss pending appeal.

Court Disposition

Application to stay enforcement adjourned; enforcement permitted to commence; leave reserved to relist the stay application or halt bankruptcy/adverse enforcement if enforcement steps would bite before the costs appeal is determined; provisional view no costs order on this interlocutory application

Orders

  • Application to stay enforcement adjourned
  • First defendant (Mr Swanepoel) permitted to begin enforcement steps in anticipation of satisfying the costs judgment