Frederick Hill v Maori Trustee - [2020] NZSC 88

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 49/2020
[2020] NZSC 88

BETWEEN	FREDRICK HILL Applicant
AND	MĀORI TRUSTEE Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	Applicant in person I R Millard QC for Respondent
Judgment:	1 September 2020

JUDGMENT OF THE COURT

A The application for an oral hearing is dismissed.
BThe application to adduce further evidence is dismissed.

C The application for leave to appeal is dismissed.
D The applicant must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

Introduction

Mr Hill seeks leave to appeal against a judgment of the Court of Appeal striking out his appeal under r 37(1) of the Court of Appeal (Civil) Rules 2005.[1] Mr Hill’s appeal to the Court of Appeal was against an order adjudicating him bankrupt on 10 September 2019.[2]
[1]Hill v Māori Trustee [2020] NZCA 219 (French and Courtney JJ) [CA judgment].
[2] Māori Trustee v Hill [2019] NZHC 2250 (Associate Judge Johnston) [HC judgment].
Mr Hill failed to pay security for costs in relation to his appeal. He had not applied for security for costs to be dispensed with. Nor did he file a case on appeal within time. His appeal, as a result, was deemed abandoned in January 2020.[3]
[3]Court of Appeal (Civil) Rules 2005, r 43.
The Māori Trustee had, before that date, filed an application to strike out the appeal on the basis that security for costs had not been paid and it wished this application to be dealt with, rather than the appeal being deemed abandoned. The Court of Appeal therefore dealt with the strike-out application in the judgment that is the subject of this application for leave.

Court of Appeal judgment

The Court said that an application under r 37(1) will be granted where the appellant has failed to provide security for costs and the appeal has no realistic prospect of success.[4] In the Court’s view, Mr Hill’s complaints related to the underlying judgment debt on which the bankruptcy proceedings were founded.[5] This debt was associated with a lease terminated by the Māori Trustee.
[4]CA judgment, above n 1, at [5], citing Turner vDavis [2012] NZCA 576 at [15]; and Riccarton Construction Ltd v Coljon Ltd [2010] NZCA 430 at [8].
[5]At [7].
The Court held that it was plain from the history of the litigation that all avenues of challenge of the underlying debt had been exhausted.[6] In summary, following the entry of the judgment debt in February 2015:
(a)Mr Hill applied unsuccessfully for a retrial of the District Court proceeding;[7]
(b)Mr Hill appealed unsuccessfully from the District Court’s substantive judgment;[8]
(c)the Māori Trustee served a bankruptcy notice on Mr Hill on 29 October 2016, which Mr Hill unsuccessfully applied to set aside;[9]
(d)Mr Hill’s appeal against the refusal to set aside the bankruptcy notice was struck out by the Court of Appeal for non-payment of security for costs.[10] His application to recall that decision was declined on 22 August 2019;[11]
(e)this Court…

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.

Continue reading Frederick Hill v Maori Trustee

Details

AGLC: Frederick Hill v Maori Trustee [2020] NZSC 88
Case: [2020] NZSC 88
Decision Date: 1 September 2020

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mr. Frederick Hill sought leave to appeal a judgment of the Court of Appeal that dismissed his appeal against a bankruptcy adjudication. The Court of Appeal had struck out Mr. Hill's appeal due to his failure to pay security for costs and the lack of a realistic prospect of success. The primary issue before the Supreme Court was whether Mr. Hill should be granted leave to appeal the Court of Appeal's decision. The court also needed to determine if an oral hearing and the admission of further evidence were warranted.

The Supreme Court considered that the matters raised by Mr. Hill were specific to his case and did not present any issues of general or public importance. The court found that all relevant issues had been thoroughly examined in previous proceedings, and there was no indication of a miscarriage of justice. The court noted that Mr. Hill had repeatedly raised similar arguments in prior cases, including before the Supreme Court itself. Consequently, the court concluded that there was no need for an oral hearing and denied the application to adduce further evidence. The Supreme Court dismissed Mr. Hill's application for leave to appeal and ordered him to pay the respondent's costs of $2,500.

Orders