JACK AND ANOR V CARVER AND ORS HC AK CIV-2008-404-005910

JACK AND ANOR V CARVER AND ORS HC AK CIV-2008-404-005910

Decline to stay execution of the judgment pending appeal because defendants' limited means and control of assets risk erosion of plaintiffs' security; allow plaintiffs to sell assets in execution provided net proceeds are deposited with an independent stakeholder pending appeal; refuse order compelling production of the original deed because the deed was not essential to the summary judgment and no basis was shown that the applicant sought the original from the correct holder; require correction of charging orders to reflect separate liabilities.

Citation
openlaw-5386a086_7d66_443a_8b30_82db5cba8e88.pdf
Parties
First Plaintiff: Neil Clarence Jack; Second Plaintiffs: Neil Clarence Jack and Alan Robert Jack; First Defendant: Shirley-Anne Carver; Second Defendant: Garry Desmond Stewart; Third Defendants: Shirley-Anne Carver, Garry Desmond Stewart and Haydn Ash
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 August 2009
Procedural Posture
Civil Proceedings (summary Judgment, Charging and Freezing Orders) / Post Judgment Applications: Application to Stay Execution Pending Appeal and Application for Production of Original Document; Appeal Pending
Outcome
Application for stay dismissed with condition; application for production of original document dismissed; costs awarded to plaintiffs.
Legal Topics
Summary Judgment, Freezing Order, Charging Order, Stay Pending Appeal, Production of Documents, Forensic Examination, Costs
Civil Procedure Property Law Trusts Contract Law Evidence Summary Judgment Freezing Order Charging Order +4 more

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Parties

Neil Clarence Jack

First Plaintiff

Neil Clarence Jack and Alan Robert Jack

Second Plaintiffs

Shirley-Anne Carver

First Defendant

Garry Desmond Stewart

Second Defendant

Shirley-Anne Carver, Garry Desmond Stewart and Haydn Ash

Third Defendants

Procedural Posture

Civil Proceedings (summary Judgment, Charging and Freezing Orders) / Post Judgment Applications: Application to Stay Execution Pending Appeal and Application for Production of Original Document; Appeal Pending

Legal Issues

  1. 1 Whether to stay execution of the judgment pending appeal
  2. 2 Whether to order production of original deed of acknowledgement for forensic examination
  3. 3 Whether charging orders properly secure only the judgment of the owner of charged land

Ratio Decidendi

Decline to stay execution of the judgment pending appeal because defendants' limited means and control of assets risk erosion of plaintiffs' security; allow plaintiffs to sell assets in execution provided net proceeds are deposited with an independent stakeholder pending appeal; refuse order compelling production of the original deed because the deed was not essential to the summary judgment and no basis was shown that the applicant sought the original from the correct holder; require correction of charging orders to reflect separate liabilities.

Court Disposition

Application for stay dismissed with condition; application for production of original document dismissed; costs awarded to plaintiffs.

Orders

  • Application for stay dismissed; if plaintiffs sell properties by way of execution the net proceeds of sale must be held on deposit with an independent stakeholder pending the outcome of the appeal or further order of the Court
  • Application requiring Lisa Jack to present the original deed of acknowledgement dated 16 October 2002 for forensic examination dismissed