Boyd v Brooks Homes Limited

[2025] NZHC 2701

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2025-425-8

[2025] NZHC 2701

UNDER

the Contract and Commercial Law Act 2017

IN THE MATTER

of an appeal against the decision of the Christchurch District Court

BETWEEN

TIMOTHY AYRE BOYD

Appellant

AND

BROOKS HOMES LIMITED

Respondent

Hearing:	(On the papers)
Appearances:	T A Boyd – Appellant self-represented D J C Russ for Respondent
Judgment:	17 September 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

BOYD v BROOKS HOMES LIMITED [2025] NZHC 2701 [17 September 2025]

[1]    On 10 June 2025, directions were made for two issues to be resolved on the papers with submissions timetabled. The Registrar, however, has only just referred those submissions to me and I apologise to the parties for the delay in dealing with the outstanding matters.

[2]    The two outstanding matters are whether Mr Boyd has paid the security for costs payable by him on his appeal; and Mr Boyd’s application to adduce additional evidence.

Security for costs

[3]    On 17 March 2025, Associate Judge Paulsen directed that Mr Boyd must pay security for costs on his appeal on or before 31 March 2025.1 That payment was not made.

[4]    Mr Boyd’s appeal is against a judgment Brooks Homes Limited (Brooks) obtained against him in the District Court for $164,008.94 (as at the date of the judgment).2 Interest continues to run from the date of judgment, 4 January 2025.

[5]    Brooks’ contract with Mr Boyd and his partner, from whom Mr Boyd is separated, permitted Brooks to lodge a caveat over their property. A caveat was registered by Brooks on 2 August 2023. Mr Boyd sought a withdrawal of the caveat. In exchange for the withdrawal of caveat, $164,199.97 was agreed to be held on trust by Mr Boyd’s solicitors. This sum was agreed and paid in late November 2024.

[6]    Mr Russ, counsel for Brooks, has produced the memorandum filed in the District Court, seeking to quantify judgment. The components of the judgment sought are:

(a)$115,066.00      Principal sum

(b)$21,469.94        Interest to the date of the Court’s judgment

(c)$27,473.00        Indemnity costs (excluding GST)

1      Boyd v Brooks Homes Ltd HC Christchurch CIV-2025-425-8, 17 March 2025 at [5].

2      Brooks Homes Ltd v Boyd [2024] NZDC 158.

[7]    The total judgment sum sought in Mr Russ’s memorandum is $164,008.94 as at 4 January 2025. I understand judgment has not been sealed because of Mr Boyd’s appeal. Mr Boyd submits that if his appeal is successful, Brooks will be owed substantially less, leaving more than enough money in trust to cover the required security for costs.

[8]Mr Boyd says the amount held in trust was based on $114,199.97 plus a further

$50,000 for costs including costs on the appeal, giving a total of $164,199.97.

[9] However, by the time the judgment sum was fixed, the amount in trust was all but exhausted by the judgment obtained by Brooks. There was an insufficient surplus funds held to serve as security, particularly given that interest continues to run from the date of judgment (4 January 2025). Mr Boyd’s submission noted at [7] above, assumes his appeal will succeed. If Mr Boyd’s appeal does succeed, no costs award will be made against him, meaning that Brooks will not need to have recourse to security. However, if Mr Boyd’s appeal fails, then there are no surplus funds in trust to serve as security for costs.

[10]   I have not been assisted by the absence of a sealed District Court order or by the failure to produce copies of the correspondence relating to the release of the caveat in exchange for funds being held. However, Mr Boyd’s evidence is that:

… $164,199.97 was retained in trust, comprising $114,199.97 of the amount claimed by [Brooks] plus $50,000 additional retention for costs and fees …

[11]   The District Court judgment provides for interest to be awarded in terms of the loan agreement, and for indemnity costs.3 Accordingly, it appears that the memorandum of judgment produced is accurate, thereby exhausting all of the funds held in trust.

[12] Given that conclusion, I am satisfied that the funds held in trust were not available to meet security for costs. They were held in lieu of the caveat, that is, as security to replace the caveat held by Brooks. Mr Boyd places a gloss on what he says the retained funds were to cover at [10] above, when he says the $50,000 was also to

3      Brooks Homes Ltd v Boyd, above n 2, at [21(b)-(c)].

cover costs on any appeal. However, at the time the amount to be held was settled, the summary judgment hearing had not been held, let alone a judgment issued or an appeal filed.

[13]   Further, Mr Boyd agreed, and was ordered  to  pay  security.  Associate  Judge Paulsen’s order was: “The appellant must pay (emphasis added) security in the sum of $1,195.00 on or before 31 March 2025.” His Honour’s direction was taken more or less verbatim from a joint memorandum of the parties filed on 12 March 2025. Had Mr Boyd believed there was no need for him to pay security, that should have been raised with the Court and Brooks’ counsel in the 12 March 2025 memorandum. The terms of his Honour’s direction are clear. The order was made in mandatory terms, namely, that Mr Boyd must pay security. Mr Boyd has made no such payment. Mr Boyd’s position could be tested by asking whether he could have withdrawn from the funds in trust the amount required to pay security. Mr Boyd does not have that ability.

[14]   Further, it is telling that Mr Boyd has not produced any document or email recording the terms of the undertaking. This points to it being agreed that the fund was not to extend to security for costs on appeal. It is inherently unlikely that such an agreement would have been made. Brooks’ counsel could not accurately estimate how long it would take for the Court’s judgment to be released. As interest continued to run, the $50,000 to cover ongoing interest and costs was being eroded. Whether it would be enough to cover interest, costs in the District Court and security for costs on an appeal would have been difficult to calculate. Secondly, Brooks’ counsel could not, without seeing a notice of appeal, estimate how long an appeal hearing might take, which influences the level of security. Thirdly, Brooks has the benefit of an indemnity costs clause which could have been invoked by Brooks in seeking that security be fixed at a higher level than that provided in the High Court Rules 2016 (the Rules).

[15]   It follows that Mr Boyd has not paid security and his appeal is deemed to be abandoned.4 That is not an end to the matter however, as Mr Boyd in his application, seeks an extension of time to pay security in the event I concluded security was not paid.

[16]   Mr Russ, in his submissions, reviewed the authorities on whether the Court is able to extend time for the payment of security on an appeal when the appeal itself   is deemed abandoned, or more significantly, whether such an extension reinstated the discontinued appeal. Mr Boyd’s submissions do not engage with the legal submissions advanced by Mr Russ in support of the proposition that there is no jurisdiction to extend time to pay security once an appeal is deemed abandoned.

[17]   In particular, Mr Russ relies on authorities from the Court of Appeal and the Supreme Court.

[18]   The learned authors of McGechan on Procedure summarise the law as follows:5

In SNB Holdings Ltd v Slabbert [2024] NZHC 492 the Court held that there was jurisdiction under r 1.19 to extend the time under r 20.13 for paying security for costs for the appeal, notwithstanding that the timeframe had passed, meaning it was not deemed to be abandoned under s 126 of the District Court Act 2016. The Court noted that the rules should not be applied in an overly technical way and the objective of the timeframe in r 20.13 was not to prevent a party pursuing a valid appeal when they had duly paid the security and had a good explanation for failing to do so earlier as required. However, in Malcolm v Saxton [2024] NZHC 1969, the Court found that, had the application for leave to appeal in that case been subject to these rules by virtue of s 126 of the District Court Act 2016, the approach in SNB   Holdings v Slabbert would not have been followed and the correct approach was that set out by the Supreme Court in Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [39]. … Rule 1.19 does not provide the Court power to reinstate proceedings already deemed abandoned by operation of statute. This rule cannot be invoked to enlarge statutory time limitations: Russell v Attorney-General [1995] 1 NZLR 749, relying on Johnsonville Licensing Trust v Johnsonville Gospel Hall Trust Board [1972] NZLR 655 (NZSC); Hodge v Residual Health Management Unit (2000) 15 PRNZ 85.

4      District Court Act 2016, s 126(3).

5      Jessica  Gorman   and   others   McGechan   on   Procedure   (online   ed,   Thomson   Reuters)  at [HR.1.19.02].

[19]   Powell J in Malcolm v Saxton drew a distinction between the effect of s 126 of the District Courts Act 2016, which deems an appeal comes to an end if security is not paid, and the power under r 1.19 of the Rules to extend time for the payment of security.6 His Honour concluded that while r 1.19 would permit an extension of time to pay security, it does not provide the Court power to reinstate proceedings already deemed abandoned by operation of statute.

[20]   Powell J said in Malcolm that the Court’s power to grant a retrospective extension to pay security is “not wide enough to reinstate proceedings deemed abandoned by statute.”7 In short, there is no jurisdiction to reinstate an appeal so abandoned.

[21]   That approach is consistent with the Court of  Appeal’s  decision  in  Hermans v Hermans, where the Court dealt with r 34(2) of the then Court of Appeal Rules 1955 which provided:8

If security is not given, the notice of motion of appeal shall be deemed to be abandoned.

…

We think this wording intractable, and that once a notice is deemed to be abandoned there is nothing before the Court which can be ‘amended or otherwise dealt with under R 69.

[22]   Rule 69 is the equivalent of r 1.5 of the Rules, which provides that non-compliance with the Rules must be treated as an irregularity and does not nullify the proceeding.

[23]   Rule 1.5(2) of the Rules provides a wide jurisdiction for the Court to make such orders as it thinks just in the event of non-compliance with the Rules. The Court of Appeal in Hermans said that wide power could not be used to rescue an appellant from non-compliance with an order to pay security for costs.

6      Malcolm v Saxton [2024] NZHC 1969 at [12].

7 At [12].

8      Hermans v Hermans [1961] NZLR 390 (CA) at 393.

[24]   In plain terms, a statute specifying a consequence of a time frame not being met trumps a general power under the Rules to extend time for a step. Unless there is an express power to extend a time limit created by a statute, recourse to the Rules    is not available. A comparable situation is the mandatory timeframe for applying to set aside a statutory demand under the Companies Act 1993 — if the timeframe is not satisfied, the Court cannot extend it under the Rules — similarly if an application to set aside a bankruptcy notice is not made within 10 working days of service, the Court cannot extend time for the application to be brought.

[25]   Accordingly, while noted by Powell J, there is the ability to extend time to pay security if that power is exercised before an appeal is deemed abandoned, the power to extend the time for payment of security does not extend to resurrect the already abandoned appeal.9

[26]   Accordingly, I find Mr Boyd’s appeal was abandoned at the expiration of the 10-working day period for payment of security. I decline Mr Boyd’s application to extend time to pay security given such cannot resurrect the appeal.

[27]   It follows, I do not need to deal with Mr Boyd’s alternative application, that is, for leave to file further evidence on the appeal, given the appeal is at an end.

[28]   Even if there had been jurisdiction to grant an extension of time, it is clear from Koh v Advisory Accountants Ltd, that there must be a good reason for security not being paid on time.10     Here, the amount of security to be paid was in a real sense     a nominal sum.  It had to be paid by 31 March 2025 and it has still not been paid.   Mr Boyd could have paid the security without prejudice to his argument that security was included in the sum held on trust. Mr Boyd agreed to an order that he pay security. If he made that agreement on the undisclosed basis, it would be covered by the money in trust, then he adopted a “sharp” position. If Mr Boyd came to that view after the order was made, then he should have sought agreement to that position or paid the

9      I note in Rangly Developments Ltd v JCL Equities Ltd [2024] NZHC 2774, the respondent conceded the Court had jurisdiction to extend time to pay security.

10     Koh v Advisory Accountants Ltd [2024] NZHC 305.

security. Had there been jurisdiction to grant an extension, I would have declined to do so.

Costs

[29]   Brooks is entitled to costs on the appeal. I note it has an indemnity costs clause. If Brooks wishes to apply for indemnity costs pursuant to that clause, then it is to file and serve a memorandum with supporting material, setting out the amount of its costs claim within 10 working days,

[30]   Any response is to be filed and served within 10 working days. If Brooks is content with costs on a 2B basis and if no such costs memorandum is filed, there is an award of costs to Brooks on a 2B basis together with disbursements as fixed by the Registrar.

Associate Judge Lester

Solicitors:

Kearney & Co, Christchurch (for Respondent)

Copy to counsel:
D J C Russ, Barrister, Christchurch (for Respondent)

Copy to:

T A Boyd (Appellant)