ASB BANK LIMITED BANK OF NEW ZEALAND LION FINANCE LIMITED Respondents
Counsel:Appellant in Person
N S Gedye for Respondents
Judgment:14 November 2007
JUDGMENT OF ARNOLD J
Application to review the Registrar’s decision not to dispense with security for costs is allowed. The requirement for the payment of security is dispensed with.
REASONS
[1] This appeal, which was commenced by notice of appeal dated 14 September 2007, has been set down for hearing on 15 November 2007, as a matter of urgency.
[2] Mr Yee, who has been acting for the appellant apparently on a pro bono basis, said in his correspondence to the Registrar that the appellant has been declared bankrupt and in the appeal seeks Court approval for a composition with his creditors. If the composition is granted, the bankruptcy will be annulled and the appellant will be free to resume office as the director of certain companies which were plaintiffs in litigation with various defendants (not the respondents in this appeal). The intention is that the companies will endeavour to continue the litigation.
[3] On 24 September 2007 the appellant, through Mr Yee, applied on an informal basis to the Registrar for an order dispensing with the requirement that he provide security for costs (r 35(6) and (7)(a) of the Court of Appeal (Civil) Rules 2005). On 25 October 2007 the Registrar advised Mr Yee that she would not dispense with the requirement but would reduce the amount required to $3,000. No formal reasons were provided, although the Registrar did discuss the position with Mr Yee. This decision was confirmed by letter dated 30 October 2007.
[4] On 12 November 2007 the appellant applied under r 7(2) for a review of the Registrar’s decision by a Judge and filed an affidavit in support. The matter was referred to me on 13 November 2007 for decision.
[5] The material filed on the appellant’s behalf (by the appellant personally or by Mr Yee) indicates that the appellant is now acting for himself, has been declared bankrupt and is unable to pay the $3,000 from his own resources. The appellant says that, if security is required, the appeal will not proceed. Apparently the appellant has not applied for a grant of legal aid as he does not wish to be a burden on the New Zealand taxpayer. If he had applied for and received a grant he would, of course, not be required to furnish security (r 36). The appellant says that the respondents’ costs on this appeal are not being met by the respondents themselves but by the defendants in the proceedings referred to in [2] above. (This is confirmed by other material before me.)
[6] The respondents, through their counsel Mr Gedye, oppose the application. Mr Gedye says that the appellant’s evidence in the High Court was that he had a source of funding available to him for the purpose of…
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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AGLC
Fava v Zaghloul [2007] NZCA 498
Case
[2007] NZCA 498
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the appellant, Philip Joseph Fava, brought an appeal against the respondents, Ekhlas Zaghloul, ASB Bank Limited, Bank of New Zealand, and Lion Finance Limited. The appellant sought an order dispensing with the requirement to provide security for costs, which was initially denied by the Registrar. The appeal was urgent, as the outcome would affect the appellant's ability to proceed with other litigation and potentially annul his bankruptcy.
The primary legal issue before the court was whether the appellant should be required to provide security for costs in this appeal. The appellant argued that he was unable to pay the required security due to his bankruptcy and did not wish to seek legal aid. The respondents, on the other hand, argued that the appellant had previously claimed to have funding available and that the requirement for security should not be waived due to the potential cost implications for them if the appeal were to be unsuccessful.
The court considered the circumstances of the case, including the stage the appeal had reached and the fact that the respondents were being indemnified by the defendants in another proceeding. The court found that dispensing with the requirement for security was appropriate in the unusual circumstances of this case, and the appeal should proceed to a hearing. The court's decision was based on the appellant's inability to provide security and the potential consequences for the progress of the appeal.
The court allowed the appeal and dispensed with the requirement for the payment of security. The appeal could now proceed to a hearing without the appellant needing to provide security for costs.