WILLIGERS v CHURCHILL FISHING INTERNATIONAL LIMITED [2020] NZHC 2212

WILLIGERS v CHURCHILL FISHING INTERNATIONAL LIMITED [2020] NZHC 2212 [27 August 2020]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECIV-2020-406-26[2020] NZHC 2212UNDER the High Court Rules 2016 and theResidential Tenancies Act 1986IN THE MATTER of an appeal against a decision of the DistrictCourt decision dated 17 August 2020BETWEEN TERRY RONALD WILLIGERSApplicantAND CHURCHILL FISHING INTERNATIONALLIMITEDRespondentHearing: 27 August 2020Appearances: G J Haszard for the ApplicantJ Moss and G Davis for the RespondentJudgment: 27 August 2020ORAL JUDGMENT OF COOKE J[1] By application dated 19 August 2020 the applicant has applied for a stay of theorders made by the District Court on 17 August 2020 dismissing his appeal from adecision of the Tenancy Tribunal. The application is supported by an affidavit of theapplicant affirmed on 20 August 2020. The orders are opposed by the respondent andan affidavit of Mr Terry Brown, affirmed on 26 August 2020 has been provided inopposition. The application was first referred to me as Duty Judge and after conveninga telephone conference on Monday 24 August 2020 I gave directions for the filing ofsubmissions and other papers so that the matter could be heard today.Background[2] I describe the circumstances in only brief form. I note that Mr Willigersdisputes matters set out in Mr Brown's affidavit and that Ms Haszard sought anopportunity to file evidence in reply if the Court was to rely on Mr Brown's affidavit.As I observed, however, the Court needs to make its decision on the evidence beforeit.[3] Mr Brown says that he has known Mr Willigers for 20 years. He says that in2017 he decided to attempt to assist Mr Willigers in dealing with this rehabilitationfrom drug use by allowing him and his family to live in his house in Picton, being theproperty now owned by the respondent.[4] Matters have since deteriorated. Mr Willigers' wife and children have left,although Mr Willigers' new partner and her baby now live at the property.Mr Willigers has not been paying rent. It is also apparent from the evidence that theproperty has been in a dilapidated state. It is not insured. The respondent now wantsMr Willigers to leave.[5] The respondent made an application to the Tenancy Tribunal for possession onthe basis that Mr Willigers was a squatter. On 8 November 2019 the Tribunal grantedpossession. Mr Willigers then applied for a rehearing, and that was declined by theTribunal on 9 December 2019.[6] Mr Willigers then appealed that decision to the District Court. That appeal wasdismissed by Judge Barkle by judgment dated 17 August 2020.1 It is this decision thatMr Willigers seeks to appeal. Significantly Judge Barkle determined that the stay thathad been in place pending the outcome of the appeal was lifted "and that immediatepossession of the property vests in Churchill Fishing".2[7] There have been other steps taken including the issue of caveats and trespassnotices but they are not directly relevant in the current application. In addition I note1 Willigers v Churchill Fishing International Ltd [2020] NZDC 15372.2 At [40].that Mr Willigers has High Court proceedings alleging that he is entitled to apercentage interest in the property by way of resulting trust.Relevant principles[8] There is no dispute as to the principles to be applied in relation to a stay. Rule20.10 of the High Court Rules 2016 provides:20.10 Stay of proceedings(1) An appeal does not operate as a stay—(a) of the proceedings appealed against; or(b) of enforcement of any judgment or order appealed against.(2) Despite subclause (1), the decision-maker or the court may, onapplication, do any 1 or more of the following pending determinationof an appeal:(a) order a stay of proceedings in relation to the decision appealedagainst:(b) order a stay of enforcement of any judgment or order appealedagainst:(c) grant any interim relief.(3) An order made or relief granted under subclause (2) may—(a) relate to enforcement of the whole of a judgment or order or toa particular form of enforcement:(b) be subject to any conditions for the giving of security thedecision-maker or the court thinks just.[9] In Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trustthe Court of Appeal said:3[10] As a starting point, a successful party is entitled to the fruits of itsjudgment. An appellant who seeks to stop this must make an application andshow why the usual consequences of a judgment should not follow. The courtwill need to balance the competing rights of the party who has obtainedjudgment against the need to preserve the appellant's position in the event of3 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZCA 377.the appeal succeeding.4 The factors to be taken into account in the balancingexercise when a stay or interim order are sought include:5(a) whether the appeal may be rendered nugatory by the lack of a stay;(b) the bona fides of the appellant as to the prosecution of the appeal;(c) whether the successful party will be injuriously affected by the stay;(d) the effect on third parties;(e) the novelty and importance of questions involved;(f) the public interest in the proceeding;(g) the overall balance of convenience; and(h) the apparent strength of the appeal.[10] Each case is considered on its own circumstances and this list of facts is notexhaustive.6Application in the present case[11] There are three factors in favour of the stay being granted in the present case.The first is that Mr Willigers will be required to leave the place he lives in if the stayis not granted. This will involve a very significant disruption to him. The secondfactor is that his present partner and her baby presently live with him. There willaccordingly be similar significant impact on third parties if the stay is not granted.Thirdly, the absence of a stay may well render the appeal nugatory or at least make itvery much less significant. Those three factors suggest that a stay for a short perioduntil the appeal is heard could well be appropriate.[12] But there are several other factors that mean the stay is not appropriate in thepresent case in my view.4 Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87.5 See Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48(HC) at [9], upheld on appeal in Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola EnterprisesLtd (1999) 13 PRNZ 48 (CA). See also Keung v GBR Investments Ltd [2010] NZCA 396, [2012]NZAR 17 at [11].6 NXP Holdings Ltd v Winc Australia Proprietary Ltd [2019] NZHC 3463 at [45]–[48].[13] First the appeal before the Court is a second appeal. There have already beentwo decisions of the Tenancy Tribunal and one decision of the District Court on themerits of Mr Willigers' right of occupation and the requirement for him to leave. Interms of the Tribunal, its function is to make the practical assessments of the rights oftenants and landlords and the rights to possession in a prompt way, and it has done soin the present case. Its function in this respect should be respected. The applicationfor a stay cuts across the scheme of the access to the Tribunal under the ResidentialTenancies Act 1986.[14] Second, the reason why the Tribunal and the District Court are wrong has notbeen persuasively set out to this Court. Ms Haszard argued that the Tribunal waswrong not to consider the evidence that Mr Willigers had an interest by way ofresulting trust in the property. But even if this is established I am unclear why thatwould give rise to right of possession to the property, certainly possession in the natureof a tenancy. Any claim to an equitable interest will need to be established in the HighCourt first before the question of equitable remedy is addressed, and I note that only apercentage interest is sought by Mr Willigers. Effective relief could still be grantedeven if the present claims in relation to possession fail. It is also relevant that a caveatis presently in place and this exists to protect Mr Willigers' claims to an equitableinterest.[15] The third factor is that there is no tenancy agreement in place and never hasbeen. The reality is that Mr Willigers is not paying rent. In those circumstances it isdifficult to see why he should be granted what is effectively a right to continue tooccupy the house at no cost as a consequence of a stay entered by the Court.[16] The fourth point is that in Mr Brown's evidence there is a suggestion that thehouse is not in a state fit for occupation. The photographs taken in October 2019suggest that, although it is not accepted that they show the present state the property.In addition Mr Brown's evidence to the effect that testing has been undertaken at theproperty and the presence of methamphetamine is very high suggesting that the househas been used for methamphetamine manufacture, if true, is concerning. It is alsoreasonably well-established that the property is not insured. It may be inappropriatefor the property to be presently occupied. I make no findings to that effect but Irecognise that these are important factors to be taken into account.[17] Finally, the claims that Mr Willigers makes are that there should be a resultingtrust in his favour. But they do not appear to be strong. They are based on an allegedagreement to purchase a share in the property. It is only a claim to an equitable interestof a certain percentage. It does not seem to me that that gives him a right ofoccupation. That distinguishes the case from the other cases such as Sergeant v Nigro& Anor relied on by Ms Haszard.7 Those cases involved occupants who had been inoccupation for longer periods of time and had more obvious connections with theproperties in question.[18] For those reasons the application for stay is dismissed.Costs[19] The respondent is to have the costs of this application on a 2B basis.[20] Ms Haszard confirmed that the substantive appeal will still be pursued. Itshould accordingly be case managed in the usual way.Cooke JSolicitors:Lundons Law, Blenheim for the ApplicantPatient & Williams, Christchurch for the Respondents7 Sergeant v Nigro & Anor [2019] NZHC 902. See also Wall v Gannon HC Rotorua CIV-2006-463-280, 17 May 2006.