Finlay v Snedden Solicitors Nominee Company Limited

[2019] NZCA 561

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA107/2014
 [2019] NZCA 561

BETWEEN	PETER RONALD FINLAY Appellant
AND	SNEDDEN SOLICITORS NOMINEE COMPANY LIMITED Respondent

Court:	Kós P, Brown and Clifford JJ
Counsel:	No appearance for Appellant J M Keating for Respondent
Judgment: (On the papers)	14 November 2019 at 4 pm

JUDGMENT OF THE COURT

AThe appeal is struck out.

BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

1. In 2011, Snedden Solicitors Nominee Co Ltd obtained judgment in the sum of approximately $740,000 against Peter Ronald Finlay.  Mr Finlay had guaranteed a loan advanced by Snedden to another company with the goal of developing land near Kaitaia.  That loan was not repaid.  Snedden subsequently served a bankruptcy notice on Mr Finlay, who applied for it to be set aside.  On 7 February 2014, Courtney J declined that application.[1]

   [1]Snedden Solicitors Nominee Co Ltd v Finlay [2014] NZHC 87.

2. Mr Finlay appealed that judgment to this Court on the grounds that the Judge had made what he suggested were various errors of fact and law.[2]  He applied for security for costs to be dispensed with.  The Registrar declined that application, a decision upheld on review by French J.[3]  Mr Finlay was ordered to pay security by 26 September 2014.

   [2]Mr Finlay did not apply for, and this Court did not make, any order suspending proceedings in the High Court pending determination of the appeal.  Consequently, he was adjudicated bankrupt in October 2014.  That bankruptcy is unaffected by the appeal.

   [3]Finlay v Snedden Solicitors Nominee Co Ltd [2014] NZCA 425.

3. Security for costs was never paid.  Nor was the appeal deemed abandoned, because in May 2014 — within three months of the appeal being brought, as required — Mr Finlay filed the case on appeal and a memorandum requesting the allocation of a hearing date.[4]

   [4]Court of Appeal (Civil) Rules 2005, r 43(1).

4. Without payment of security for costs, the Registrar could not allocate a hearing date.[5]  The appeal therefore lay dormant for several years until, on 9 August 2019, Clifford J issued a minute warning Mr Finlay that the Court intended to consider whether to strike out his appeal pursuant to r 44A of the Court of Appeal (Civil) Rules 2005 for failing to prosecute it with due diligence and dispatch.  The parties were invited to file memoranda.  Ms Keating, appearing for Snedden, submitted that the appeal should be struck out.  No response was received from Mr Finlay.

   [5]Rule 37(2).

5. This appeal has seen no progress for far too long.  Mr Finlay was given a full opportunity to pay security for costs — without which the appeal cannot proceed — and did not do so.  Several years now passed without him taking any steps.  We are satisfied that he has failed to prosecute the appeal with due diligence and dispatch.[6]

   [6]Rule 44A(1)(b).

6. The appeal is struck out.

7. There is no order as to costs.

Solicitors:
Kennedys, Auckland for Respondent