IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2024-404-000244
[2024] NZHC 2787	

UNDER	the Land Transfer Act 2017 and High Court Rules 2016	
BETWEEN	ACE BUILDING, PLUMBING & DRAINAGE SERVICES LIMITED
Applicant	
AND	DOVATION TRUSTEE LIMITED
Respondent	

	CIV-2023-404-001085	

BETWEEN	
ACE BUILDING, PLUMBING & DRAINAGE SERVICES LIMITED
Applicant	
AND	DOVATION TRUSTEE LIMITED
First Respondent

ECO-SMART HOMES NORTHWEST LIMITED
Second Respondent

ECO-SMART GROUP LIMITED
Third Respondent	

Hearing:	On the papers	
Appearances:	D Purusram for the Applicants T Bowler for the Respondents	
Judgment:	26 September 2024	

JUDGMENT OF ASSOCIATE JUDGE GARDINER

ACE BUILDING, PLUMBING & DRAINAGE SERVICES LTD v DOVATION TRUSTEE LTD [2024] NZHC
2787 [26 September 2024]

This judgment was delivered by me on 26 September 2024 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Introduction

[1]	Ace Building, Plumbing & Drainage Services Ltd (Ace) has applied for a stay of execution of an order dismissing its application for an order that caveats it had registered against certificates of title for properties owned by Dovation Trustee Limited (Dovation) not lapse.1 Ace has filed a notice of appeal of the relevant judgment to the Court of Appeal.

[2]	Ace submits that a stay should be granted because:

(a)	its appeal raises questions of law and fact involving public and/or private interests of sufficient importance to warrant an appeal;

(b)	the principles concerning constructive trusts applicable to caveats have been incorrectly interpreted or applied in the judgment;

(c)	Ace will suffer losses if the caveats are discharged prior to the appeal;

(d)	a stay of execution is necessary to prevent Ace losing the benefit of the appeal, and the appeal rights being rendered nugatory;

(e)	it is in the interests of justice for a stay to be granted.

1	Ace Building, Plumbing & Drainage Services Ltd v Dovation Trustee Ltd [2024] NZHC 2225   at [78].

[3]	Ace has filed an affidavit in support of the application by Mr Roneel Kumar, sworn on 14 August 2024.

[4]	Ace served the interlocutory application for a stay on Dovation on a Pickwick basis. On 3 September 2024, I directed Dovation to file and serve any notice of opposition and affidavit in support by 17 September 2024. I made an interim order staying execution of the judgment. On 17 September 2024, counsel for Dovation sought an extension of time to 19 September 2024. Dovation has not filed a notice of opposition or affidavit opposing the application for a stay.

Legal principles

[5]	Rule 12(3) of the Court of Appeal (Civil) Rules 2005 provides that, pending the determination of an application for leave to appeal or an appeal, the court appealed from may, on an interlocutory application:

(a)	order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or

(b)	grant any interim relief.

[6]	In determining whether to grant a stay, the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of the judgment, and “the need to preserve the position in case the appeal is successful”.2 Factors to be taken into account in this balancing exercise include:3

(a)	whether the appeal may be rendered nugatory by the lack of a stay;

(b)	the bona fides of the applicant as to the prosecution of the appeal;

(c)	whether the successful party will be injuriously affected by the stay;

2	Keung v GBR Investment Ltd [2012] NZAR 17 at [11], referring to Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.
3	At [11].

(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.4

Analysis

[7]	Weighing in favour of a stay of execution is the fact that the appeal may be rendered nugatory if a stay of execution is not made. If the order is not stayed, the caveats will lapse and there will be nothing to prevent Dovation from dealing in the properties. Ace’s appeal will be rendered pointless.

[8]	Additionally, Ace appears to be genuinely pursuing the appeal – the appeal was accepted by the Court of Appeal for filing on 15 August 2024.

[9]	Plainly, Dovation will be injuriously affected by the stay, because it will be unable to deal with the properties until the appeal is determined. Dovation has not filed any evidence to inform me of any specific prejudice, other than the obvious prejudice of being unable to deal with the property.

[10]	Weighing against the stay is the fact that the appeal does not raise novel or important questions of public interest. Nor does the appeal appear to be strong.

[11]	However, on balance I consider that the fact that the appeal may be rendered nugatory if a stay is not granted is the prevailing consideration.

4	At [11]; and Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZCA 377 at [10].

Result

[12]	The order at paragraph [78] of the judgment, that:

The application for an order that caveats 12911961.1 against certificate of title 939893 and 12911884.1 against certificate of title 914888 not lapse is dismissed.

… is stayed, pending determination of the appeal.

Associate Judge Gardiner

Solicitors:

Neilsons Lawyers, Auckland Victorian Lawyers, Auckland