Bidois v The Home Mortgage Company Limited HC Tauranga CIV 2010-470-357

[2010] NZHC 1793

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV -2010-470-357

UNDER  the District Courts Act 1947

IN THE MATTER OF     an appeal against a decision of the District

Court at Tauranga

BETWEEN  ROBERT GREGORY BIDOIS First Appellant

ANDDIANE PERA BIDOIS Second Appellant

ANDTHE HOME MORTGAGE COMPANY LIMITED

Respondent

Hearing:         3 September 2010 (Heard at Rotorua)

Appearances: Appellants in person

B U Upton and S M Cervin for the Respondent

Judgment:      3 September 2010

ORAL JUDGMENT OF WOODHOUSE J (Adjournment)

Parties / Solicitors:

Mr R G Bidois and Mrs D P Bidois, Tauranga

Mr B J Upton, Simpson Grierson, Solicitors, Auckland

BIDOIS V THE HOME MORTGAGE COMPANY LIMITED HC TAU CIV -2010-470-357  3 September 2010

[1]      This appeal had proceeded a short distance, with Mrs Bidois advancing submissions on behalf of herself and Mr Bidois.  I took the opportunity to indicate at that stage, in order to assist Mrs Bidois, that, assessed in light of the written submissions, it did not appear that the appellants had any substantial argument in support of the appeal.   I emphasised that those observations were based on the written material but it was apparent that Mrs Bidois was not in a position to expand on those submissions in any material way.

[2]      For the record I note that there are two broad grounds of appeal.  The first is that recorded in the notice of appeal which, in essence, challenges Judge Spiller’s conclusion that Mr and Mrs Bidois are estopped from advancing the argument that there could be no assignment because of the principles of res judicata – the earlier decision of Associate Judge Doogue.  No further written submissions were advanced on that point and it appeared clear that no oral submissions were going to be advanced.   On the basis of the information presently before the Court – and  I emphasise that point – the prospects of succeeding appeared slim.

[3]      The quite separate argument advanced on appeal is contained in a written submission.  The essence of the argument is that this Court has no jurisdiction and, by implication, the District Court had no jurisdiction.  The arguments are familiar to the court and founded on a number of propositions going back to the Declaration of Independence of 1835.   As I indicated to Mrs Bidois, these arguments have been advanced on a number of occasions in this Court and in the Court of Appeal.  Both Courts have made clear that, except in very limited respects, the Court with jurisdiction for almost all matters is this Court.  And I am in no doubt that this is the Court with jurisdiction to entertain the appeal we are currently dealing with.  Apart from anything else there are decisions of the Court of Appeal binding on this Court.

[4]      At the point when I spoke to Mrs Bidois about the apparent merit of the appeal, Mrs Bidois asked permission for an associate to speak on her behalf, Ms Leanne Faulkner.  I gave permission.  I apprehended that Ms Faulkner had formed a clear impression that, with all due respect to Mrs Bidois, she was having difficulty articulating  the  argument.     As  a  consequence  Ms  Faulkner  applied  for  an

adjournment to enable Mr and Mrs Bidois to get a lawyer to represent them.   Ms Faulkner assured me that if an adjournment is granted a lawyer will be obtained to represent Mr and Mrs Bidois at the adjourned hearing of this appeal.

[5]     Mr Upton opposed an adjournment.   The grounds of opposition carry considerable weight.  He submitted that the grounds of appeal have little prospect of success.   He noted that Mr and Mrs Bidois have had ample opportunity to get a lawyer to represent them.  And he referred in that regard, amongst other things, to the history of the proceeding in this Court.  On a broader perspective he noted that, in effect, Mr and Mrs Bidois had had at least since around 2006 to sort these matters out.  Any adjournment would simply add to the cost of what is, in essence, an almost inevitable outcome.

[6]      As  I  say,  I  consider  there  is  considerable  weight  in  those  submissions, although caution is always needed in determining the final result of an argument advanced on both sides by competent counsel until that argument is concluded.   I accept Mr Upton’s submission that there do not appear to be any grounds of appeal other than those already advanced and the prospects of succeeding on those are, in one case – jurisdiction – probably nil, and on the other – the res judicata argument – probably remote.  Having made those observations I do also need to emphasise that this does not indicate any final conclusion on the res judicata argument which has not been argued before me.   And it may be that, on what is a summary judgment application, competent counsel may be able to advance a reasonable argument on appeal which was not earlier advanced and which can properly be advanced on an appeal.

[7]      With considerable hesitation I am granting an adjournment to enable Mr and Mrs Bidois to obtain legal representation.  The reason for granting that adjournment is the fundamental proposition that all people who appear before the  Court are entitled to legal representation.  Although Mr and Mrs Bidois can be criticised for not dealing with that earlier, in the circumstances I do believe they should be given that final opportunity.  It may also be that, with further legal advice (I note that they were competently represented by a lawyer in the District Court) they may review their approach to this matter overall.  I am there referring somewhat cryptically to

the desirability of resolving the present legal dispute by other means.  It really does seem clear beyond argument that Mr and Mrs Bidois have liability for a debt and they really do not dispute that.   That is what should be sorted out. Any party is entitled to pursue their legal rights and their legal defence in a Court, but in their own interests that should be done with due discretion and with regard to the broader picture.

[8]      A further reason for granting the adjournment is that I am in a position to hear the adjourned appeal and, to that extent, some judicial resources will not be wasted by another Judge having to become familiar with the matter.  That, of course, does not address the fact that the respondent ends up incurring further costs.

[9]      I grant an adjournment to Monday, 4 October 2010 at 2:15 p.m. with the following directions and orders:

a)       Mr and Mrs Bidois are to pay a further sum of $960 as security for costs on the appeal.  That sum is to be paid into Court no later than Friday, 17 September 2010.

b)        If payment of that security is not made by 4:00 p.m. on Friday 17

September 2010, the appeal will be deemed to be abandoned.

c)       I have directed that the payment be made by 17 September, having initially directed that it be paid by 10 September 2010, following an application by Ms Faulkner on behalf of Mr and Mrs Bidois.  In the course of that discussion I made clear that it is important that there are timetables and that they are adhered to.   I also repeat for emphasis, and as I made quite clear to Mr and Mrs Bidois as I was dictating this: if this additional sum for security is not paid the appeal will be deemed to have been abandoned and the consequence of that is that the appeal is at an end in its entirety.  There will then be no need for a fixture on 4 October 2010 and The Home Mortgage Company Limited will be entitled to enforce the order that they obtained in the District Court.

d)Any  further  submissions  in  support  of  the  appeal  by  the  lawyer engaged by Mr and Mrs Bidois are to be filed and served by Friday 17

September 2010.  Those submissions should obviously have regard to what is contained in this judgment and, in particular, in relation to the arguments directed to questions of jurisdiction.

e)       Any further submissions the respondent may wish to file may be filed and served by Friday 1 October 2010.  I note that there is no direction that the respondent file further submissions.

[10]     The respondent is entitled to costs on this hearing on a 2B basis.

Peter Woodhouse J