Clarke v Watts

[2010] NZCA 322

IN THE COURT OF APPEAL OF NEW ZEALAND

CA588/2009
[2010] NZCA 322

BETWEENNEIL MARTIN CLARKE
Appellant

ANDCOREY DANIEL WATTS
Respondent

Hearing:20 July 2010

Court:Glazebrook, Randerson and Stevens JJ

Counsel:Appellant in Person (No appearance)
D G Dewar for Respondent

Judgment:27 July 2010 at 4.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is dismissed.

BThe appeal is struck out.

CCosts of $1,000 plus usual disbursements are awarded to the respondent.

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REASONS OF THE COURT

(Given by Glazebrook J)

Introduction

[1]       On 7 September 2009 Ronald Young J ordered the release of monies held by the High Court to the solicitors for Mr Watts.[1]  On 18 September 2009 Mr Clarke filed a document entitled “Appeal Against Monies Held by the High Court at Wellington” in which he gave notice that he was “applying for leave to appeal” to this Court against Ronald Young J’s order for the release of monies.

[1]Clarke v Watts HC Wellington CIV-2006-485-2461, 7 September 2009.

[2]       Mr Clarke applied for a dispensation with regard to security for costs which was refused by the Registrar.  On 31 May 2010 Arnold J refused the application for a review of the Registrar’s decision.[2]  Security has not been paid.

[2]Clarke v Watts [2010] NZCA 221 (Clarke v Watts (CA)). The full background to this matter was set out by Arnold J at [2]–[7].

[3]       The application today was an application for an extension of time to make an application for a fixture and file the case on appeal in the above matter.  We note that this application was not served on the respondent and it turns out that the notice of appeal has never been served on the respondent either and therefore it appears that the appeal may not in fact have been properly brought.

[4]       Before the hearing of the application, Mr Clarke telephoned the Registry and informed the Registry that he would not be appearing at the hearing and that he may file a notice of abandonment.  No such notice of abandonment was received before the hearing.  Mr Clarke did not appear at the hearing.  Despite being contacted by the Registry, no notice has been received since the hearing.  On 22 July 2010 Mr Clark informed the Registry that he was not going to file a notice of abandonment.

Discussion

[5]       As security for costs has not been paid, the appeal, even if validly brought, is liable to be struck out.  There has not even been any indication of any intention to pay security for costs.  The application for an extension of time is thus misconceived.

[6]       As a precaution, we dismiss the application on the basis that the appeal is hopeless as noted by Arnold J in his decision refusing to waive security for costs.[3]  Mr Clarke has not identified any errors in Ronald Young J’s decision and there are no arguable grounds of appeal.  As Arnold J noted, the order to release the monies was a natural consequence of the High Court’s confirmation of the costs award in respect of which the monies had been paid into Court.

Result

[3]      Clarke v Watts (CA) at [16].

[7]       The application for an extension of time is dismissed.  There has been no payment of security for costs on the appeal (if extant).  It is struck out accordingly.

[8]       The respondent sought costs.  As no notice of abandonment was received before the hearing, the respondent was obliged to attend the hearing.  Costs of $1,000 plus usual disbursements are awarded to the respondent.

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Respondent.