Davey v Bank of New Zealand

[2022] NZHC 1822

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-409

[2022] NZHC 1822

IN THE MATTER

of an application for leave to appeal (if required) and stay of proceedings/stay of execution

BETWEEN

MATTHEW ROBERT DAVEY

Applicant

AND

BANK OF NEW ZEALAND AND/OR ITS AGENTS IN AUSTRALIA INCLUDING CORRS CHAMBERS WESTGARTH IN SYDNEY

Respondent

Hearing:

(Determined on the Papers)

Counsel:

K J Sheehan for Applicant

K Paterson and C Olds for Respondent

Judgment:

27 July 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Results Judgment on application for stay of enforcement)

DAVEY v BANK OF NEW ZEALAND [2022] NZHC 1822 [27 July 2022]

[1]    At 11.21 am on 27 July 2022, counsel for Mr Matthew Davey applied on a without notice or on a Pickwick basis for a stay of enforcement of the Judgment obtained by the Bank of New Zealand (BNZ) on 16 July 2021. No appeal from the 16 July 2021 decision has been filed.

[2]    Urgency was sought on the basis that if the stay was not granted by 5pm on 27 July 2022, Mr Davey would be bankrupted in the Federal Court of Australia.

[3]    It is highly unsatisfactory the application for a stay is made at the eleventh hour. The bankruptcy proceedings have been before the Federal Court since at least 23 June 2022 when an initial adjournment was granted (for how long I am not told) and then a further adjournment by consent until 28 July 2022. As Mr Davey is resident in Sydney Australia the BNZ obtained leave on 13 September 2021 to issue a bankruptcy notice to be issued by this Court against Mr Davey.1 Mr Davey was represented in that application so has been aware of the need for a stay for an extended period. It is no answer to say as Mr Davey suggests that responsibility for a stay not being sought earlier or the failure to apply for leave to appeal out of time (or an extension of time to appeal) rests with his previous solicitors - his present solicitors were instructed in late April 2022. Judge Paulsen in a Minute in this proceeding dated 4 May 2022 noted Ms Sheehan’s advise that Mr Davy may apply for leave to appeal.

[4]    A telephone conference was held at 4pm on 27 July 2022 to address the stay application on a Pickwick basis. Time does not allow for a full decision on the stay application, hence this Results Judgment.

[5]    Counsel for the BNZ however agreed to an adjournment of the bankruptcy application in Australia for 10 working days overtaking the need for the present application.

[6]    The application for an interim stay of enforcement of the Judgment dated    16 July 2022 and the associated costs Judgment of 13 August 2021 is  declined.     In short, the order made on 16 July 2021 has not been appealed, even though it was made over a year ago and the bankruptcy proceedings have been before the Federal

1      Bank of New Zealand v Davey [2021] NZHC 2390.

Court twice.   An appeal  does not operate as a stay-  here  there is  no appeal  only   a statement of intention to appeal. The delay in bringing an appeal coupled with the delay in applying for a stay stand squarely against the application. I am left with the impression that the timing of this application was intended to force the Court’s hand to grant a stay. However, beyond the urgency created by Mr Davey’s own delays, the stay application in my view lacks merit.

[7]Costs on this application are reserved.

Associate Judge Lester

Solicitors:

Kate Sheehan Lawyers, Auckland (for Applicant) Buddle Findlay (for Respondent)