Creser v Creser

[2004] NZCA 211

IN THE COURT OF APPEAL OF NEW ZEALAND

CA110/04

BETWEENRICHARD JOHN CRESER

Applicant

ANDJANINE MICHELLE CRESER

Respondent

Hearing:17 August 2004

Coram:McGrath J
Hammond J
Chambers J

Appearances:  Applicant in Person

R Chapman for Respondent
P R W Chisnall for Official Assignee

Judgment:2 September 2004 

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Application for special leave to appeal

[1]       Richard Creser applies for special leave to appeal under r 6(3) of the Court of Appeal (Civil) Rules 1997.  The decision he wishes to appeal against is a decision of Associate Judge Gendall delivered on 8 March 2004 adjudicating Mr Creser bankrupt.  Mr Creser filed a notice of appeal on 15 March.  But he failed to give security for the respondent’s costs in this court.  As a consequence, by virtue of r 11(3) his notice of appeal is treated as having been abandoned.  Now that the appeal period has expired, Mr Creser may pursue his proposed appeal only if this court grants special leave. 

[2]       The test to be applied in circumstances such as these is well established.  This court held in Air Work (NZ) Limited v Vertical Flight Management [1999] 1 NZLR 29 at 31 that the power to grant special leave under r 5 following a deemed abandonment is unlikely to be exercised “save in exceptional circumstances”, an approach further approved by this court in State Insurance Limited v Brooker (2001) 15 PRNZ 493 at [8]. Ultimately the test is whether granting leave would meet the overall interests of justice (B Bullock and Co Ltd v Matthews (1998) 13 PRNZ 505 (CA)) but it must always be remembered that an important “interest of justice” is the interest in finality of litigation. 

[3]       An applicant for special leave must always demonstrate a satisfactory explanation for the delay and an arguable appeal point.  Normally this court considers those matters in that order.  In this case, we can go immediately to consider the merits of the proposed appeal, as we are satisfied it has no merit.  The court should never grant an indulgence in circumstances where a proposed appeal which cannot be brought as of right is unmeritorious. 

Merits of the proposed appeal

[4]        Before the merits of the appeal can be discussed, several background facts need to be stated.  Last year, Mr Creser commenced a proceeding against his sister, Janine Creser, the current respondent.  Ms Creser had been named as an executor in the will of her mother, Jessie Creser.  Mr Creser wanted to stop Ms Creser from taking out probate of that will.  His proceeding was heard by Gendall J, who on 2 September last year delivered his decision.  He found against Mr Creser.  He ordered Mr Creser to pay costs to Ms Creser in the sum of $5,843.50. 

[5]        Mr Creser sought to appeal from Gendall J’s judgment.  In the end, some matters were resolved by consent, but not all.  Mr Creser continued with his application for leave to appeal on the unresolved matters, which included costs.  This court, in a judgment delivered on 8 October last year (CA 193/03) held that all outstanding matters other than costs could be satisfactorily dealt with in the High Court once a foreshadowed application for grant of probate in solemn form was made.  Those matters did not require the attention of this court.  On costs, this court declined to interfere with the award of costs made by Gendall J.  Further, this court made an award of costs on the application for leave: Mr Creser was ordered to pay a further $2,000. 

[6]        Mr Creser did not pay either costs award.  Ms Creser took enforcement action by way of bankruptcy proceedings.  The bankruptcy proceedings were first called on 26 January this year.  There were several adjournments, all at Mr Creser’s request.  The matter came before Associate Judge Gendall on 8 March 2004.  On that date the judge adjudicated Mr Creser bankrupt.  It is that judgment against which Mr Creser now seeks leave to appeal. 

[7]        Mr Creser has advanced a number of grounds of appeal, but all of them are misconceived.  Mr Creser sought to go behind the costs orders, which were the unpaid debts leading to his bankruptcy.  That is plainly impermissible.  Those orders have been fixed.  Gendall J’s order was affirmed on appeal.  There has been no appeal from this court’s judgment.  The costs orders are final. 

[8]        Secondly, Mr Creser argued that he should not have to pay the costs orders because of his entitlement under his mother’s estate.  He should be able, he said, to set off these orders against that entitlement.  There is nothing in that point, however, as Mr Creser has no vested interest in his mother’s estate.  His “share” has been left to an institutional trustee who has a discretion to pay income to Mr Creser.  In any event, Mr Creser’s earlier proceeding against his sister was not a claim against the estate: it seems to have been a misguided attempt to prevent his sister from applying for probate. 

[9]        Thirdly, Mr Creser argued that the bankruptcy adjudication had been made without jurisdiction.  The basis for that submission appeared to be that, on the morning of 8 March, Mr Creser had filed in court a “protest to jurisdiction” and a notice of application to transfer proceedings to a judge, said to be under s 26N of the Judicature Act 1908.  The basis of both documents was an allegation that Associate Judge Gendall was biased.  Associate Judge Gendall dealt with these matters.  Mr Creser put forward his submissions, as did Mr Chapman for Ms Creser.  Associate Judge Gendall delivered a judgment, declining the application to transfer the proceedings to a judge and ruling that the protest to jurisdiction was misconceived.  Having delivered this ruling, the judge indicated that he was going to hear the bankruptcy petition.  Mr Creser chose to withdraw at that point, notwithstanding the judges urging him to remain..  The judge then went on to consider the bankruptcy petition.  He made an order for adjudication. 

[10]      Mr Creser argued before us that the application to transfer the proceedings to a judge had never been determined – at least by a judge.  It did not need to be.  Associate Judge Gendall had jurisdiction to consider the application under s 26N(1).  He did consider the application.  He heard submissions from the parties.  He ruled on the application.  All of that was clearly within his jurisdiction.  There is nothing in this complaint of Mr Creser.

[11]      None of these arguments has any chance of success.  Nor did the others advanced by Mr Creser.  In a final attempt to see whether any assistance could be given to Mr Creser, we enquired whether he was able to pay the costs orders, he said he could not. 

[12]      The order for adjudication was properly made.  There are no arguable grounds of appeal.  That in itself determines that this application for leave must fail. 

Delay

[13]      We do not need to go into detail, but we also would not have been satisfied by Mr Creser’s explanation for the delay in pursuing this appeal.  Mr Creser was required to give security by 14 April.  He gave none.  On 3 May this court issued a notice of abandonment under r 11.  Mr Creser did nothing more until he filed the present application on 3 June.  No satisfactory explanation for the delay has been given. 

Result

[14]      We dismiss the application for leave. 

[15]      Because Mr Creser is a bankrupt, we make no order as to costs. 

Solicitors:
Johnston Lawrence, Wellington for Respondent