Boswell v Millar - [2014] NZCA 18

IN THE COURT OF APPEAL OF NEW ZEALAND

CA293/2013
[2014] NZCA 18

BETWEEN	KATHRYN FRANCES BOSWELL Appellant
AND	OWEN ROSS MILLAR Respondent

Counsel:

Appellant in person
D S Quinn for Respondent

Judgment:

(On the papers)

17 February 2014 at 11 am

JUDGMENT OF ELLEN FRANCE J
(Review of Registrar’s decision)

AThe application for review of the Registrar’s decision refusing to dispense with security for costs is dismissed.
BSecurity for costs of $5,880.00 must be paid into Court by 20 March 2014.

____________________________________________________________________

REASONS

Introduction

The appellant brought a proceeding in the High Court in relation to a settlement agreement she had entered into with the respondent. Katz J dismissed the appellant’s claims which were for breach of contract and for rent.[1] The respondent’s counterclaim for equitable interest on the purchase price or, in the alternative, rent also failed.
[1]Boswell v Millar [2013] NZHC 703.
The appellant has appealed against the decision of Katz J.[2]
[2]The appeal was brought out of time and the appellant was granted an extension of time and a stay of a costs order made against her: Boswell v Millar [2013] NZCA 519.
The Registrar set security for costs in the sum of $5,880. The appellant by letter dated 27 May 2013 sought dispensation from the requirement to pay security. In a letter dated 6 November 2013, the Registrar declined to waive security.[3] The Registrar ordered that the security of $5,880 be paid by 4 December 2013. The appellant now seeks a review of the decision refusing to dispense with security.

Approach

[3]It appears that the delay in dealing with the application for dispensation is explained by reference to issues arising over the payment of the filing fee.

In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[4] An appellant may apply to the Registrar for a waiver and the Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[5] The circumstances in which security will be waived have been described as follows:[6]
[7] Security for costs will be waived where it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver. The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined. Impecuniosity alone is not usually sufficient to justify a waiver, but may be a reason to reduce the quantum of security.

Discussion

[4]Court of Appeal (Civil) Rules 2005, r 35(2).

[5]Rule 35(6).

[6]Spicer v Credit Link Factors Ltd [2012] NZCA 69 (footnotes omitted); see also Easton v Broadcasting Commission [2009] NZCA 252, (2009) 19 PRNZ 675 at [5]; Fava v Zaghloul [2007] NZCA 498, (2008) 18 PRNZ 943 at [9]; Hills v Public Trust [2010] NZCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boswell v Millar

Details

AGLC: Boswell v Millar [2014] NZCA 18
Case: [2014] NZCA 18
Decision Date: 17 February 2014 at 11 am

CaseChat Overview and Summary

In Boswell v Millar, the appellant, Kathryn Boswell, appealed against a decision of the Registrar of the Court of Appeal of New Zealand refusing to dispense with the requirement to pay security for costs. The case arose from a proceeding in the High Court regarding a settlement agreement between Boswell and the respondent, Owen Millar. The Registrar had set security for costs at $5,880, which Boswell sought to have waived. The central issue was whether the circumstances warranted a waiver of the requirement to pay security for costs.

The court considered whether the appellant was impecunious and if other exceptional circumstances justified a waiver. The Registrar had previously denied the application for dispensation, noting that Boswell owned four properties, which indicated sufficient equity to cover the security amount. The appellant provided further information about her financial situation, but the court found that it was insufficient to establish impecuniosity. The court also noted that the appeal did not raise issues of public importance, and the merits of the appeal appeared weak.

The Court of Appeal upheld the Registrar’s decision, dismissing the application for review. The appellant was required to pay the security for costs of $5,880 by 20 March 2014. This decision reinforced the principle that security for costs is necessary to protect the respondent’s position and that exceptional circumstances must be shown to warrant a waiver.

The final order of the Court of Appeal required the appellant to pay the specified security for costs within the given timeframe.

Orders