Bank of New Zealand v Koroniadis
[2015] NZHC 180
•16 February 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2013-485-2905 [2015] NZHC 180
UNDER The Companies Act BETWEEN
BANK OF NEW ZEALAND Judgment Creditor
AND
ATHANASIOS KORONIADIS Judgment Debtor
Hearing: 4 February 2015 Counsel:
J Toebes for Judgment Creditor
A Koroniadis in personJudgment:
16 February 2015
JUDGMENT OF ASSOCIATE JUDGE SMITH
[1] This is an application by the Judgment Creditor (the Bank) for an order lifting a “halt” order made in this Court on 25 October 2013, under s 38 of the Insolvency Act 2006. The halt order had the effect of staying an application by the Bank to have Mr Koroniadis adjudicated bankrupt, while Mr Koroniadis pursued an appeal to the Court of Appeal against the judgment on which the bankruptcy proceeding was based.
[2] The Bank says that Mr Koroniadis has failed to diligently pursue his appeal, which relates only to procedural issues and is, in the Bank’s view, devoid of merit. The Bank says that it should not be delayed any further in the pursuit of its bankruptcy proceeding. It asks for an immediate order for adjudication in bankruptcy.
[3] Mr Koroniadis opposes the Bank’s application, saying that the justice of the
case requires that he be permitted to have his appeal heard by the Court of Appeal.
BANK OF NEW ZEALAND v ATHANASIOS KORONIADIS [2015] NZHC 180 [16 February 2015]
[4] Since the Bank applied to have the halt order lifted, the Court of Appeal has allocated a date for the hearing of Mr Koroniadis’ appeal. That date is 18 June 2015.
Background
[5] On 8 July 2013 the Bank obtained summary judgment against Mr Koroniadis for $1,196,290.54. The judgment arose out of a loan made by the Bank to Miramar Development Ltd (in receivership) (Miramar). Mr Koroniadis and his brother guaranteed loans from the Bank to Miramar.
[6] The Bank held a first mortgage over a property owned by Miramar in
Edwards Street, Wellington.
[7] Miramar fell into default on the loan in 2012. The defaults were not remedied, and the Bank issued a notice under s 119 of the Property Law Act 2007 (the Act) in respect of its first mortgage over the Edwards Street property. The notice was served on Miramar on 5 October 2012, and specified a remedy date for defaults of 9 November 2012. The Bank had difficulty serving a copy of the notice on Mr Koroniadis, as it was required to do by s 121 of the Act. The notice was finally served on him on 17 November 2012, being a date after the remedy date specified in the notice issued under s 119 of the Act.
[8] Various defences raised by Mr Koroniadis in opposition to the Bank’s summary judgment application were dismissed by Associate Judge Gendall in his judgment given on the Bank’s summary judgment application. A counterclaim which Mr Koroniadis had issued against the Bank was subsequently dismissed, by judgment of Associate Judge Bell given on 21 October 2013.
[9] The Bank initiated bankruptcy proceedings against Mr Koroniadis. A bankruptcy notice was issued on 24 July 2013, and when Mr Koroniadis did not pay the amount stated in the notice, the Bank filed a creditor’s application for adjudication in bankruptcy in August 2013.
[10] In the meantime, on 5 August 2013, Mr Koroniadis filed an appeal to the
Court of Appeal against the judgment of Associate Judge Gendall. That was the last
day on which Mr Koroniadis was entitled to file an appeal. Unfortunately, he did not attend to service of his appeal on the Bank that day – a service copy of the notice of appeal was not served on the Bank until the following day.
[11] That meant that he had not filed his appeal in time. Mr Koroniadis says that this was a genuine mistake. In any event, he subsequently filed an application for extension of time to commence his appeal under r 29A of the Court of Appeal (Civil) Rules 2005.
[12] Mr Koroniadis applied under s 38 of the Insolvency Act 2006 for an order halting the bankruptcy proceeding brought against him while he pursued his appeal. The application for a halt order was granted by Associate Judge Bell in a judgment given on 25 October 2013.
[13] In giving judgment on the halt application, the Associate Judge identified two points in the summary judgment decision of Associate Judge Gendall on which he thought Mr Koroniadis ought to be given the opportunity to try to persuade the Court of Appeal that he should have an extension of time for his appeal.
[14] One of the points raised by Associate Judge Bell concerned the operation of an “acceleration” clause in the Bank’s loan documents. The particular acceleration clause in this case did not provide for the balance of the loan to become repayable automatically in the event of default by the borrower – the Bank was required to make demand before that would occur. In this case, the Bank did serve notices on Miramar and Mr Koroniadis specifying Miramar’s default, and requiring that the
default be remedied within a period specified in the notice.1 But there was no
evidence before the Judge hearing the Bank’s application for summary judgment that the Bank had called up the balance after the time for complying with the default notice had expired.
[15] The second point identified by Associate Judge Bell related to the question of
service of the Bank’s s 119 default notice on Mr Koroniadis.2 The s 119 default
1 Property Law Act 2007, s 119. Pursuant to that section, if the Bank wished to rely on the acceleration clause and claim the full balance of the loan from Miramar and Mr Koroniadis.
2 Section 121. Pursuant to that section, a copy of any s 119 default notice given to Miramar as
notice was not served on Mr Koroniadis until after the date specified for remedying the default. Associate Judge Gendall had accepted the Bank’s case that it had sufficiently complied with s 121, because it had served the notice on Mr Koroniadis “as soon as possible”, as required by the wording of the section. The point that Associate Judge Bell considered worthy of consideration on appeal was whether the service had to be made on the former mortgagor or covenantor (in this case Mr Koroniadis) under s 121 before the time for remedying the default had expired. The Associate Judge noted that the purpose of serving a s 119 notice on a covenantor such as Mr Koroniadis appeared to be to give such a person an opportunity to remedy the mortgagor’s default within the time provided in the s 119 notice, and of course that could not be done if the covenantor did not receive a copy of the default notice before the expiry of the default period.
[16] The Associate Judge noted counsel’s advice that the requirements of s 121
relating to this point had not been the subject of any earlier considered decisions.
[17] The Associate Judge stated that, in light of those possible appeal points, he was reluctant to deprive Mr Koroniadis of the opportunity of at least raising them with the Court of Appeal, and doing so himself (as opposed to an appeal being pursued by the Official Assignee in Mr Koroniadis’ bankruptcy).
[18] The Associate Judge ordered a halt to the proceeding, pending further order of the Court, and directed that the Bank’s bankruptcy application was to be listed in the first available bankruptcy list after the Court of Appeal had given any relevant decision on the application by Mr Koroniadis for an extension of time under r 29A of the Court of Appeal (Civil) Rules, or (if that application was successful) determining the merits of the appeal.
[19] The Bank was also permitted to bring its bankruptcy application back on for hearing if there was a “proper basis for contending that Mr Koroniadis is not
diligently pursuing his appeal rights in the Court of Appeal.”3
mortgagor also had to be given to Mr Koroniadis as covenantor.
3 Bank of New Zealand v Koroniadis [2013] NZHC 2865 at [18].
[20] Mr Koroniadis succeeded with his application to the Court of Appeal for extension of time to commence an appeal against the summary judgment. In a decision given on 23 May 2014, the Court of Appeal noted that Mr Koroniadis was only one day out of time in bringing his appeal.4 It concluded that Mr Koroniadis’ breach was a technical one, only in respect of service. The Court also referred to that part of the judgment of Associate Judge Bell setting out the two points identified as
being worthy of further consideration, and stated: “These observations suggest, at
least, that there may be some merit in the appeal”.5
[21] The Court of Appeal acknowledged that some prejudice might be caused to the Bank by further delay. However, the Court went on to say that if the extension of time application was dismissed, bankruptcy might follow without Mr Koroniadis having the chance to challenge what he considers to be a judgment wrongly given against him. The Court of Appeal said:6
Given the act of bankruptcy relied on by the Bank, the bankruptcy would flow directly from the judgment sought to be appealed by [Mr Koroniadis]. We consider it is preferable in the present circumstances that an applicant facing bankruptcy has any matters disputed resolved before being made bankrupt. Once adjudicated bankrupt, the control of any appeal would pass to the Official Assignee.
[22] With the extension of time, the effective commencement date for Mr Koroniadis’ appeal was 23 May 2014. Security for costs was set by the Registrar at $5,880, and Mr Koroniadis was informed of the twenty working day period within which he could file any application for an order relating to the security requirement. That period expired on 23 June 2014, but it was not until 22 August 2014 that Mr Koroniadis applied for dispensation from the obligation to post security for the Bank’s costs on his appeal. He had earlier filed an application for waiver of the setting down fee.
[23] On 5 September 2014, the Registrar declined to dispense with security for costs on the basis that Mr Koroniadis’ application had not been received within the
20 day working period prescribed in the rules.
4 Koroniadis v Bank of New Zealand [2014] NZCA 197 at [2].
5 At [22].
[24] In a judgment given on the papers on 29 September 2014, Stevens J upheld the decision of the Registrar not to review Mr Koroniadis’ application to dispense with security for costs on the appeal. His Honour directed Mr Koroniadis to pay the security within 20 working days of the date of the judgment.
[25] In reaching his decision, Stevens J noted the observation in the Court of Appeal’s judgment on Mr Koroniadis’ application for an extension of time to appeal that his appeal may have some merit. But Stevens J identified the possible merit in the appeal as concerning only procedural requirements under the Act. Even if Mr Koroniadis’ appeal were to succeed in relation to those procedural grounds, Stevens J considered that the debt would still be payable to the Bank, albeit
somewhat later in time. His Honour went on to say:7
[The Bank] rightly states that, in the interim, interest on the debt continues to accrue. On those grounds, I am not satisfied a reasonable and solvent litigant would reasonably wish to pursue this appeal. As the Supreme Court stated, security should only be dispensed with if “it is right to require the respondent to defend the judgment…without the usual protection as to costs provided by security”. This is not such a case.
(citations omitted)
[26] Stevens J concluded his 29 September 2014 judgment by noting that, in a memorandum opposing Mr Koroniadis’ application to the Registrar to dispense with security, the Bank had sought an order striking out the appeal under r 37(1) of the Court of Appeal (Civil) Rules. The learned Judge concluded:8
At the appropriate time it is open to [the Bank] to make a formal application for strike-out accompanied by the appropriate filing fee.
[27] In the meantime, the Bank’s application for an adjudication order had been called in this Court on a number of occasions. The adjudication application was adjourned each time while the Court awaited the result of Mr Koroniadis’ application
for extension of time to file his appeal, and then the appeal itself.
7 Koroniadis v Bank of New Zealand [2014] NZCA 477 at [11], citing Reekie v Attorney General
[2014] NZSC 63 at [21].
[28] The Bank’s position before the 29 September 2014 judgment in the Court of Appeal is perhaps illustrated by a memorandum which its counsel filed in this Court on 22 May 2014. In that memorandum, counsel for the Bank noted that Mr Koroniadis’ extension of time application had not then been determined by the Court of Appeal. Counsel went on to say:
It is inevitable therefore that the application for adjudication in bankruptcy be further adjourned to the next date convenient to the Court pending the issue of the decision in the Court of Appeal.
[29] Counsel requested that the Bank’s application for adjudication be removed from the 26 May 2014 list, and be adjourned to a later list convenient to the Court.
[30] By early November 2014, the Bank’s attitude had hardened. By memorandum dated 4 November 2014, the Bank requested that its adjudication application be called again in the bankruptcy list, for the purpose of applying to lift the halt order made on 25 October 2013. Counsel for the Bank set out a timeline of events running from the date of the summary judgment issued in July 2013, designed to show that Mr Koroniadis had not been pursuing his appeal diligently. Counsel submitted that Mr Koroniadis had been stringing out all steps in the appeal, with a view to deferring his “inevitable bankruptcy”.
[31] Counsel highlighted an email from Mr Koroniadis to the Registrar of the
Court of Appeal (dated 20 October 2014) in which Mr Koroniadis said:
Could you please set a fixture [for the hearing of the appeal] for August/September 2015 (September 2015 would be better). The reason for the delay is I am in discussion with The Companies Office who are considering/investigating recourse against the receivers [of Miramar]. When they do it will have a direct impact on my case before the Court of Appeal.
[32] Counsel pointed out that any claim against the receivers as agents of Miramar could not affect the judgment obtained by the Bank against Mr Koroniadis. Counsel also emphasised the observations of Stevens J in the Court of Appeal decision of
29 September 2014, in which the learned Judge stated that he was not satisfied that a reasonable and solvent litigant would reasonably wish to pursue the appeal.
[33] In general terms, Counsel for the Bank submits that, with few (if any) exceptions, Mr Koroniadis has not taken prescribed steps in the prosecution of his appeal until the last day allowed to him under the rules applicable in that Court. Counsel referred, by way of example, to Mr Koroniadis not filing the case on appeal in the Court of Appeal until 25 August 2014 (the last day for filing). Similarly, Mr Koroniadis did not pay the security for costs on the appeal until 28 October 2014, again the last day for payment. The Bank contends that Mr Koroniadis’ actions in deferring filing or taking other steps until the last permitted day, and his request to the Court of Appeal that a fixture be set for August/September 2015, do not represent the “diligent” pursuit of his appeal contemplated by the condition imposed by Associate Judge Bell in the October 2013 halt order.
[34] Mr Koroniadis opposed the Bank’s application to have the halt order lifted. The application was set down for hearing on 4 February 2015, and directions given for the filing of affidavits and submissions.
[35] The Court of Appeal allocated the 18 June hearing date on 28 January 2015. I was advised from the bar that the Registrar of the Court of Appeal had offered the parties a range of hearing dates, one being in May 2015 and two others being after
18 June 2015. Mr Koroniadis had indicated to the Court of Appeal that the other dates posed difficulties for him (he is enrolled as a student at Waikato University, but can attend the hearing on 18 June 2014 as that date falls in his mid-term break).
[36] One other part of the narrative which I should mention is that the Court of Appeal issued a notice in November 2014 advising the parties that Mr Koroniadis’ appeal was deemed to have been abandoned, as of 26 August 2014 (the day after the end of the period within which he was required to request a fixture and file his case on appeal). However, the Court of Appeal subsequently advised that the abandonment notice had been issued in error.
[37] The only point that turns on this is that a month or two may have been lost in the period between 25 August 2014 and November 2014, when the Court of Appeal might have been allocating a fixture for the appeal. However, I cannot say that, if the Registrar had considered the allocation of a fixture in, say, early September 2014,
a date would have been available that was significantly earlier than the 18 June 2015 fixture that was later allocated. Mr Toebes submits that Mr Koroniadis would have opposed any earlier fixture, pointing to the email sent by him to the Court of Appeal in October 2014 in which he asked for an August/September 2015 fixture.
The Bank’s arguments for lifting the halt order
[38] The Bank makes two arguments:
(1)Mr Koroniadis has abused the indulgence given to him by the halt order by achieving an exceptional delay – almost 18 months since August 2013 when the application for adjudication was filed.
(2)Events which have occurred since the summary judgment order was made have changed the situation, so that there is no longer any basis for the halt order.
[39] In support of the second of those arguments, the Bank refers in particular to the fact that the property over which the Bank held a first mortgage has now been sold. Settlement was effected on 19 December 2013. There has also been a settlement with Mr Koroniadis’ brother. $250,000 was received from him in reduction of the debt owing to the Bank on 5 September 2013.
[40] The immediate result of the two later events is that the debt owed by
Mr Koroniadis was reduced from almost $1.2 million to $481,506.13 as at 13
January 2014 (plus accruing interest).
[41] The Bank served fresh demands for the reduced amount on Miramar and Mr Koroniadis in January 2015. In a covering letter to Mr Koroniadis, the Bank’s solicitors advised that the demand replaced prior demands, and reflected the receipt by the Bank of the net proceeds of sale of the Edwards Street property. The covering letter also advised Mr Koroniadis that the amount set out in the demand, with accruing interest, would constitute the amount for which the Bank would, absent full payment, proceed with its application for adjudication in bankruptcy.
[42] The Bank’s contention is that any acceleration clause issue which may have been relevant to the original claims made against Mr Koroniadis is no longer relevant; it has now served a demand on Mr Koroniadis that meets the requirements of the acceleration clause in the loan documents.
[43] The Bank further submits that the Court of Appeal hearing Mr Koroniadis’ appeal is entitled to, and will, take into account the service of the demand made in January 2014. If necessary, the Court of Appeal will permit an amendment to the Bank’s statement of claim in the summary judgment proceeding to accommodate the Bank’s revised reliance on the fresh demand served after the summary judgment was entered against Mr Koroniadis. The Bank says that the Court of Appeal will regard any original deficiency in the Bank’s discharge of its obligation to serve a demand on Mr Koroniadis for the balance of the loan as having been “cured” by the service on him of the January 2014 revised demand.
[44] At the hearing, Mr Toebes advised that, whether or not Mr Koroniadis is now adjudicated bankrupt, the Bank will apply to adduce further evidence on the appeal, being evidence of the sale of the Edwards Street property, the contribution of
$250,000 to the total debt by Mr Koroniadis’ brother, and the service of fresh demands for the reduced balance in January 2014. He acknowledged that evidence relating to those matters was available to the Bank before the Court of Appeal gave its decision on Mr Koroniadis’ application for an extension of time to appeal, and that those matters were apparently not put before the Court of Appeal in the evidence or submissions on that application.
[45] On the second of the two possible appeal points identified by Associate Judge Bell, the Bank submits that any failure to comply with the s 121 obligation to serve a copy of the s 119 notice on the covenantor “as soon as possible” did not prevent the amount secured by the mortgage from becoming payable. That is the effect of s 121(2)(a) of the Act. The statutory consequence of any failure to comply is set out in s 121(3): the mortgagee is liable in damages for any loss arising from the failure.
[46] The Bank submits that any breach of its s 121 obligation to serve a copy of the s 119 default notice on Mr Koroniadis could not possibly have casued him any loss. He received a copy of the notice, a few days after the expiry of the period within which the default was required to be remedied, in late 2013, some 13 months before the property was sold in December 2013. He thereafter had ample time to redeem the mortgage if he had wished (and been able) to do so. He did not do that. Nor, in the Bank’s submission, is there is any evidence to suggest that Associate Judge Gendall’s finding that the service was achieved “as soon as possible” was in error. Any delay in service did not prevent the amount secured by the mortgage from becoming due and payable, and did not prevent the receivers
from selling the property.9
The Bank’s arguments for an immediate adjudication order
[47] The Bank submits that there will be no prejudice to Mr Koroniadis if an adjudication order is made – he is a student, and there is no evidence of jeopardy to his employment or employment prospects. The revenue he presently resorts to will continue to be available to him.
[48] Nor will the claims against the receivers and the Bank which Mr Koroniadis has signalled be stopped. As the Court of Appeal noted in Goodwin v Copland:10
It would be for the Official Assignee to assess the claim and determine whether it should proceed. If it were to proceed the proceeds of claim, if successful, would be an asset in the bankruptcy, distributable to creditors. If the sum recovered were greater than the debts provided in the bankruptcy, there may be grounds for the bankrupt to be discharged. All this shows is that rather than be lost sight of, the claim would be independently assessed on its merits and the Official Assignee would make a decision on the steps to be taken.
[49] The Bank further submits that it is beyond debate that Mr Koroniadis is insolvent (his various applications for waivers of Court filing fees, and to dispense with security for costs provide some evidence of that). It notes also that one other
creditor filed notice of intention to support the Bank’s application for adjudication.
9 Property Law Act, s 121(2)(a) and (b).
10 Goodwin v Copland [2014] NZCA 568 at [38].
[50] Notwithstanding this apparent impecuniosity, the Bank referred to evidence from Mr Koroniadis’ bank statements of substantial purchases,11 and a suggestion that Miramar may have diverted rental income from the Edwards Street property from its account with the Bank to a personal account established with TSB Bank Ltd. (I take it that those matters are raised by the Bank not to call in question its own submission that Mr Koroniadis is insolvent and should be adjudicated bankrupt on
that account, but because it considers that any such purchases or diversion of payments are proper matters for enquiry by the Official Assignee, and therefore provide additional justification for an order adjudicating Mr Koroniadis bankrupt.)
[51] The Bank’s last submission is that Mr Koroniadis’ behaviour has been vexatious. For example, he is said to have made in excess of 140 complaints to the Banking Ombudsman against the Bank, none of which have been upheld.
Discussion and Conclusions
[52] I am not prepared to lift the halt order at this stage.
[53] In support of its submission that there is no merit in Mr Koroniadis’ appeal, the Bank relies on the Court of Appeal decision in BNZ Finance v Smith & Leuchars.12 In that case, the High Court had found on a summary judgment application that a demand made on the guarantor for accelerated repayment of the debt had not been properly made. However, by the time the matter came before the Court of Appeal, the circumstances had changed: the expiry date of the loan had
passed, and it had become due and payable. In those circumstances, the Court of Appeal was prepared to allow an amendment to the plaintiff’s pleadings to accommodate the fact that the full debt had become due and payable. The result was that the plaintiff obtained judgment for the amount of the debt.
[54] Mr Toebes submits that a similar result must follow in this case. The Bank served fresh demands in January 2014, in respect of which no issues can arise under
the Act, and the Court of Appeal will apply the same principle and decide that there
11 Referred to in a judgment of the Court of Appeal dated 30 October 2013, overturning the Registrar’s decision to decline to give Mr Koroniadis a waiver on the filing fee in the Court of Appeal.
12 BNZ Finance Ltd v Smith & Leuchars (1991) 3 NZLR 659.
is no basis on which the appeal can succeed. In Mr Toebes’ submission, the Court will address the position as it presently stands, and deal with the appeal (in effect) as if the original judgment had been based on the demands which were made in January 2014.
[55] There may be merit in that submission, but on the view to which I have come it is neither necessary nor appropriate for me to decide the point. The real issue, it seems to me, is whether the issue of whether there is or is not merit in Mr Koroniadis’ appeal should be decided now in this Court, or in four months’ time in the Court of Appeal.
[56] In that regard, I note that the fresh circumstances which the Bank says doom Mr Koroniadis’ appeal to certain failure occurred as long ago as January 2014. The Bank’s submissions on Mr Koroniadis’ application for an extension of time to appeal were not required to be filed until after that time.13
[57] The Bank was therefore in a position to put to the Court of Appeal the same matters which it now says render Mr Koroniadis’ appeal hopeless on the hearing of Mr Koroniadis’ application for an extension of time to appeal. If these matters are decisive in the Bank’s favour, as it now submits, it seems at least possible that Mr Koroniadis’ application for a time extension would have been refused. But the Bank apparently did not raise them.
[58] Nor has the Bank made formal application to the Court of Appeal to strike out Mr Koroniadis’ appeal (the course referred to by Stevens J near the end of his judgment given on 29 September 2014).14
[59] In the meantime, Mr Koroniadis has expended time and resources getting his arguments on appeal to the point where a fixture has now been allocated for the
hearing. It appears that those steps have included adding additional grounds in a
13 In a memorandum filed in this Court on 14 February 2014, Counsel for the Bank advised that, by minute of Randerson J dated 11 February 2014, Mr Koroniadis was directed to file and serve his submissions in support of his application for an extension of time by 17 February 2014. In a later memorandum dated 23 April 2014 filed in this Court, Counsel advised that both parties had filed their submissions [in the Court of Appeal] and had agreed to Mr Koroniadis’ extension of time application being dealt with on the papers.
14 Referred to at [26] of this judgment.
“revised notice of appeal” dated 11 August 2014, although Mr Toebes tells me this document has not been served, and its status is unclear. Whether or not there is any merit in these additional grounds, and whether Mr Koroniadis is likely to be permitted by the Court of Appeal to argue them, was not the subject of any significant argument at the hearing on 4 February 2015.
[60] In his judgment given on 25 October 2013, Associate Judge Bell said that he was reluctant to deprive Mr Koroniadis of the opportunity of at least raising with the Court of Appeal the arguments the Associate Judge had identified, and that Mr Koroniadis should be able to do so himself. And in its judgment granting Mr Koroniadis an extension of time to bring his appeal, the Court of Appeal also expressed the view that it is preferable that an applicant facing bankruptcy should have any disputed matters resolved before he or she is made bankrupt.
[61] Having regard to the Bank’s own delays in raising matters which it now says demonstrate clearly that there is no merit in the appeal, and to the fact that a fixture has now been allocated for the hearing of the appeal in approximately four months time, I am not persuaded that the Bank’s argument that the appeal must fail on the merits should be determined in this Court now, and not in the Court of Appeal.
[62] Having regard to those considerations, I am not persuaded that the halt order should be lifted at this stage on the basis of the Bank’s “no merit” argument.
[63] Turning to the Bank’s submission that Mr Koroniadis has failed to diligently pursue his appeal, I accept that Mr Koroniadis has generally left steps in the prosecution of his appeal to the last day allowed to him under the Rules. He also asked the Court of Appeal in October 2014 not to allocate an appeal date before August/September in 2015, to allow him time to investigate certain matters with the Companies Office.
[64] Against that, Mr Koroniadis is a litigant in person, and I do not consider that the “diligently pursue” condition of the halt order was intended to deprive him of the full periods of time which are allowed to all persons filing appeals to the Court of Appeal under the Court of Appeal (Civil) Rules 2005. I note also that, although Stevens J expressed the view on 29 September 2014 that a reasonable and solvent litigant would not reasonably wish to pursue the appeal, Mr Koroniadis was
nevertheless allowed 20 working days from the date of the judgment to post the security for costs.
[65] The fact that a hearing date, approximately four months away, has now been allocated for the hearing of the appeal is also a factor weighing in Mr Koroniadis’ favour on this issue.
[66] In all these circumstances, I am not prepared to accept the Bank’s submission that it presently has a “proper basis” for contending that Mr Koroniadis is not diligently pursuing his appeal rights.
[67] The Bank’s application to lift the halt order is accordingly refused. Mr Koroniadis should understand, however, that this decision will not prevent the Bank from making a further application to lift the stay if proper grounds for making such an application should arise after the date of this judgment.
[68] As the halt order will remain in place pending further order of the Court, it is unnecessary to address the Bank’s submissions in support of the adjudication application.
[69] The costs on the application to lift the halt order are reserved.
Associate Judge Smith
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