Bird v New Zealand Guardian Trust Company Limited

[2019] NZCA 498

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA426/2017
 [2019] NZCA 498

BETWEEN	GEOFFREY JAMES BIRD Appellant
AND	NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED First Respondent PHILIP ANTHONY BIRD Second Respondent DAVID ANDREW BIRD Third Respondent ALLEN ROGER BIRD Fourth Respondent

Court:	Kós P, Brown and Clifford JJ
Counsel:	Appellant in person No appearance for First Respondent B K Ferguson for Second, Third and Fourth Respondents
Judgment: (On the papers)	16 October 2019 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal is struck out.

BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

1. Geoffrey, Philip, David and Allen Bird are four of the five adult sons of Brian James Bird, who died in 2016, aged 81.  Brian Bird named Geoffrey Bird as executor in his will.  In 2017, following disagreements concerning Geoffrey Bird’s administration of the estate, Philip, David and Allen Bird sought an order removing him as executor and appointing the New Zealand Guardian Trust Co Ltd in his place.  In a judgment dated 12 July 2017, Gendall J granted that order.[1]

   [1]Bird v Bird [2017] NZHC 1612.

2. On 31 July 2017, Geoffrey Bird filed a notice of appeal in this Court, alleging the Judge made numerous errors of fact and law.  He applied for security for costs to be dispensed with.  The Deputy Registrar declined that application, a decision upheld on review by Cooper J, who ordered Mr Bird to pay security no later than 19 February 2018.[2]  Mr Bird sought leave to appeal both Cooper J’s judgment and the original High Court judgment to the Supreme Court.  On 8 February 2018, that Court declined leave.[3]

   [2]Bird v Bird [2017] NZCA 627.

   [3]Bird v New Zealand Guardian Trust Co Ltd [2018] NZSC 9.

3. Security for costs was never paid.  Nor was the appeal deemed abandoned, because in October 2017 — within three months of the appeal being brought, as required — Mr Bird filed the case on appeal and a memorandum requesting the allocation of a hearing date.[4]

   [4]Court of Appeal (Civil) Rules 2005, r 43(1).

4. Without payment of security for costs, the Registrar could not allocate a hearing date.[5]  The appeal therefore lay dormant for more than a year until, on 9 August 2019, Clifford J issued a minute warning Mr Bird that the Court intended to consider whether to strike out his appeal pursuant to r 44A of the Court of Appeal (Civil) Rules 2005 for failing to prosecute it with due diligence and dispatch.  The parties were invited to file memoranda.  Ms Ferguson, appearing for Philip, David and Allen Bird, submitted that the appeal should be struck out.  No response was received from Geoffrey Bird.

   [5]Rule 37(2).

5. This appeal has seen no progress for far too long.  Mr Bird was given a full opportunity to pay security for costs — without which the appeal cannot proceed — and did not do so.  More than a year has now passed without him taking any steps.  We are satisfied that he has failed to prosecute the appeal with due diligence and dispatch.[6]

   [6]Rule 44A(1)(b).

6. The appeal is struck out.

7. There is no order as to costs.

Solicitors:
Meares Williams, Christchurch for Second, Third and Fourth Respondents