Clarke v Forsyth Barr Limited - [2017] NZCA 300

IN THE COURT OF APPEAL OF NEW ZEALAND

CA277/2017
[2017] NZCA 300

BETWEEN	MATTHEW SIMON CLARKE Appellant
AND	FORSYTH BARR LIMITED Respondent

Counsel:

Appellant in person
C J Griggs and C M Kenworthy for Respondent

Judgment:

(On the papers)

14 July 2017 at 3.00 pm

JUDGMENT OF FRENCH J
(Review of Registrar’s decision)

AThe application for review of the Registrar’s decision refusing to dispense with security for costs is declined.
BSecurity for costs in the sum of $6,600 must be paid into Court by 4 August 2017.

____________________________________________________________________

REASONS

Introduction

Mr Clarke has filed an appeal against a decision of Duffy J in the High Court. In her decision, the Judge declined Mr Clarke’s application for summary judgment and struck out his statement of claim.[1]
[1]Clarke v Forsyth Barr Ltd [2017] NZHC 842.
Security for costs on the appeal was set at $6,600. Mr Clarke applied for dispensation from payment under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005. In a decision dated 7 July 2017, the Registrar declined to grant dispensation and directed that security of $6,600 was to be paid by 4 August 2017.
Mr Clarke disputed the correctness of the Registrar’s decision. His email protesting the decision has been treated as an application for review and referred to me for determination.

Background

In initially applying for dispensation, Mr Clarke advised that he was unemployed, had no assets and was living in emergency housing. Although he did not provide any documentary verification of his financial position, the Registrar said it appeared he was likely to be impecunious. Ultimately, she put that to one side because her decision turned on an assessment of the merits of the appeal, which she found lacking.
The proceedings arise out of Mr Clarke’s previous employment with Forsyth Barr Ltd as an investment adviser. In 2015, Forsyth Barr initiated a disciplinary investigation against him. As a result of this investigation, Forsyth Barr and Mr Clarke entered into an exit agreement. Mr Clarke resigned from his employment. The terms of the exit agreement included provisions releasing Mr Clarke from the restraint of trade covenant in his employment agreement and regulating client transfers, as well as a provision that the agreement was in full and final settlement of all claims Mr Clarke might have against Forsyth Barr.
As Mr Clarke himself acknowledged, the statement of claim he filed in the High Court is prolix.[2] Justice Duffy said she found it difficult to discern exactly what causes of action he was relying on but that it could “broadly be inferred” he was relying on three, namely:[3]
(a)Forsyth Barr failed to act in good faith towards him during their employment relationship.
(b)Forsyth Barr breached the parties’ alleged verbal agreement regarding 11 conditions of employment.
(c)Forsyth Barr breached the exit agreement …
[2]Mr Clarke said the prolixity is necessary to detail his claim.
[3]At [39].
Justice Duffy held that the first two causes of action could not succeed because they were within the exclusive jurisdiction…

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.

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Details

Case: [2017] NZCA 300
Decision Date: 14 July 2017 at 3.00 pm

CaseChat Overview and Summary

Clarke v Forsyth Barr Limited is an appeal against a decision by Duffy J in the High Court, where Mr Clarke's application for summary judgment and his statement of claim were both dismissed. The appeal is against the Registrar's refusal to exempt Mr Clarke from the requirement to pay security for costs in the sum of $6,600. The Court of Appeal was asked to review the Registrar's decision and determine whether it was correct.

The legal issue before the Court was whether the Registrar erred in deciding that Mr Clarke was required to pay security for costs. Mr Clarke's argument was that the Judge had misinterpreted his claim and that his appeal raised issues of public interest. The Court was required to consider whether the appeal was frivolous, vexatious, or an abuse of process, which would have justified the exemption from the requirement to pay security for costs.

The Court found that the appeal did not raise any issues of public interest and that it was an appeal which a reasonable and solvent litigant would not pursue. The Court also found that the statement of claim was deficient, and that it was not sufficient for Mr Clarke to simply assert that he was questioning the "legitimacy" of the exit agreement. The Court concluded that it would be unjust to require Forsyth Barr to defend the judgment under appeal without the usual protection as to costs provided by security.

The Court declined to review the Registrar's decision and upheld the requirement for Mr Clarke to pay security for costs in the sum of $6,600. The Court found that the appeal was not frivolous, vexatious, or an abuse of process, and that it was necessary to protect Forsyth Barr's interests.

The final orders of the Court were that the application for review of the Registrar's decision refusing to dispense with security for costs is declined, and that security for costs in the sum of $6,600 must be paid into Court by 4 August 2017.

Orders