Creser v Creser

[2011] NZCA 294

IN THE COURT OF APPEAL OF NEW ZEALAND

CA750/2010
[2011] NZCA 294

BETWEEN  RICHARD JOHN CRESER
Appellant

AND  JANINE MICHELLE CRESER
First Respondent

AND  MARION NGAIRE CRESER
Second Respondent

Counsel:         Appellant in person

Judgment:      24 June 2011 at 2.30 pm

JUDGMENT OF CHAMBERS J

AThe application to review the sum fixed by way of security for costs is dismissed.

BThe appellant must pay security for costs of $5,560 on or before 5 July 2011.

REASONS

1. John Creser, the appellant, appeals against a decision of Ronald Young J, striking out his claim.[1]  The Registrar has fixed security for costs in the sum of $5,560.  Mr Creser seeks to review that decision.  He seeks to have security dispensed with. 

   [1]      Creser v Creser HC Wellington CIV-2009-091-466, 13 October 2010.

2. He submits that his appeal is “clearly in the realm of the public interest” and that, unless security is waived, his “civil rights to natural justice and transparency will be breached”. 

3. I have no doubt the Registrar’s decision was correct.  This is clearly not one of those exceptional cases where security should be dispensed with.  I say that for the following reasons.

4. First, I have read the judgment under appeal and I am aware of the broad nature of the argument Mr Creser wishes to run.  My assessment is that his chances of success on appeal are slight.  (I hasten to assure Mr Creser that I will not be sitting on his substantive appeal.)  It follows from that assessment that, so far as I can judge it at the moment, the respondents are likely to obtain an award of costs against Mr Creser.  In the High Court, the respondents were awarded costs.[2]  Ronald Young J saw fit to award increased costs on the basis of the way in which Mr Creser had conducted the case.  His Honour also thought Mr Creser “was unjustified in commencing these proceedings”.[3] 

   [2]      Creser v Creser HC Wellington CIV-2009-091-466, 23 November 2010.

   [3] At [10].

5. Secondly, Mr Creser has a history of not paying costs awarded against him.  The respondents have little chance of recovering costs should the appeal be unsuccessful unless they can look to money paid in by way of security. 

6. Thirdly, contrary to Mr Creser’s submission, I judge this appeal to have minimal public interest.  There is no basis for dispensing with security on public interest grounds.

7. Fourthly, there will be “no breach of Mr Creser’s civil rights” if he has to pay security.  In nearly all cases appellants in this court pay security as part of the statutory regime for bringing their appeals.  Mr Creser is in no different position from other appellants.  He has not indicated that he will be forced to drop the appeal if security is ordered.  To the contrary, history would indicate that nothing will persuade Mr Creser to stop this particular campaign. 

Solicitors:
Crown Law Office, Wellington for Respondent