Cribb v Evia Rural Finance Limited
[2013] NZCA 165
•21 May 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA179/2012 [2013] NZCA 165 |
| BETWEEN ROBERT CLIFFORD HOANI CRIBB |
| AND EVIA RURAL FINANCE LIMITED |
| AND THE OFFICIAL ASSIGNEE |
| Counsel: D B Hickson for Appellant |
| Judgment: 21 May 2013 at 3.30 pm (On the papers) |
JUDGMENT OF WILD J
The appellant is to give security for costs as fixed in the sum of $5,560 by Friday 14 June 2013.
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By application filed on 24 April the appellant applies for:
(a)a review of the Registrar’s decision of 10 April refusing the appellant’s application to dispense with security for the costs of this appeal; and
(b)an extension of time to apply to dispense with the giving of security for costs.
This is the relevant sequence of events in this appeal:
| Date | Event |
| 26.3.12 | Appeal filed. |
| 30.3.12 | Security for costs fixed at $5,560. Appellant advised. |
| 27.9.12[1] | Appeal deemed abandoned, pursuant to r 43(1) Court of Appeal (Civil) Rules 2005. |
| 26.11.12 | Appellant applies, pursuant to r 43(2), to extend the time stipulated by r 43(1). The respondents consent to this application. |
| 31.1.13 | Case on Appeal filed. |
| 1.2.13 | By consent, Harrison J extends to 28.2.13 the time within which the appellant must apply for a fixture. Directs that there be no further extension. |
| 27.2.13 | Appellant applies for a fixture. |
| 19.3.13 | Appellant applies to dispense with security for costs. |
| 26.3.13 | First respondent advises that it does not consent to dispensing with security. |
| 10.4.13 | Registrar issues decision: (a) Pointing out that the appellant’s application to dispense with security is well out of time: r 35(7) required that it be filed and served within 20 working days of the filing of the appeal. (b) Notwithstanding (a), refused the application on its merits. |
[1]In her decision of 10 April 2013 the Registrar gives the date of deemed abandonment as 24 October 2012. That is not correct.
Somewhat unusually, the appellant has filed an affidavit in support of his application for review. In that, he offers the following explanation for his failure to apply within time to dispense with security:
8.My failure to apply for dispensation of security for costs was a genuine oversight. I believe that at the time my appeal was lodged that my lawyers thought that a waiver of fees was the only procedural matter to be attended to. I did not as a lay person understand anything differently. In the meantime, on 1 February 2013 the Court granted my application to extend time to apply for allocation of a hearing date and file the Case on Appeal, (see annexure “A”) and I have complied fully with the terms of the Court’s orders in that regard. Unfortunately I did not know of the security issue at the time my extension was granted and in no way was it questioned or raised.
I do not regard that as an adequate explanation for the fact that the appellant’s application to dispense with security was filed some 11 months out of time. It follows that I do not regard it as a proper basis for the appellant’s application to extend time for the filing of his application. First, as the appellant acknowledges in that paragraph, he was represented by a solicitor throughout. While the appellant may not himself have been aware of the rules, his solicitor ought to have been. The Court wrote to the appellant’s solicitor on 30 March 2012 advising him that security for costs had been fixed in the sum of $5,560 and of the requirements of r 35, including that any application under r 35(6) must be made within 20 working days. The appellant does not suggest that that letter was not received by his solicitor.
Secondly, the appellant cannot rely, in terms of security for costs, on the extension of time for compliance with r 43(1) which Harrison J granted him on 1 February this year. The Judge would not have been aware that security for costs had not been paid. On the contrary, he would have naturally assumed that r 35 had been complied with. Otherwise, why would the appellant be seeking an extension under r 43? In no way can the appellant now complain that he has incurred the expense of applying for a fixture and filing his Case on Appeal, only then to find that he has not complied with r 35. He has brought that situation upon himself.
It follows that I agree with the Registrar that the application to dispense with security was well out of time, and should not be granted for that reason. Because no proper explanation is offered for the failure to give security for costs in time, I decline the application made by the appellant on 24 April for an extension of time for his application to dispense with security.
Strictly, it is unnecessary to deal with the application on its merits. However, as the Registrar did that, I will briefly review her reasons.
First, the Registrar held that there were no exceptional circumstances justifying dispensing with security. I agree with that. One point made by the first respondent in opposing the application is worthy of note. It is that the appellant swore his affidavit in support of his application in London on 15 April 2013. As the first respondent points out, it is difficult to reconcile that with the appellant’s assertion, in his affidavit, that his only source of income is National Superannuation and that he has no assets available to give security. The appellant offers no explanation as to his presence in London, how the trip was funded, and what its duration and purpose are.
Secondly, the Registrar saw nothing in the appeal of public importance or significance. I agree with the Registrar on that score also. This was and is private litigation.
Lastly, given that the judgment appealed against adjudicated the appellant bankrupt, almost by definition it seems appropriate that the first respondent have security for its costs of the appeal, should it be unsuccessful.
In the result, having reviewed the Registrar’s decision, I uphold it both as to the application being inexplicably well out of time, and as to it lacking any merit.
The appellant is to give security for costs as fixed in the sum of $5,560 by Friday 14 June 2013.
Solicitors:
D B Hickson, Auckland for Appellant
Stace Hammond, Hamilton for First Respondent
Ministry of Business, Innovation and Employment, Auckland for Second Respondent
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