Gosney v Ngai Tahu Property Limited

[2015] NZHC 203

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000010 [2015] NZHC 203

BETWEEN

BRIAN ARTHUR GOSNEY AND

AUDREY LAURA EDWARDS Appellants

AND

NGAI TAHU PROPERTY LIMITED Respondent

Hearing:	18 February 2015
Appearances:	A R Armstrong for Appellants A N Riches for Respondent
Judgment:	18 February 2105

ORAL JUDGMENT OF GENDALL J

[1]      This is an appeal against the decision of the District Court given by Judge Crosbie dated 2 December 2014.   Linked to this appeal is an application by the appellant to dispense with security for costs in this matter.  This application is made pursuant to r 20.13 High Court Rules. As I understand it the security for costs which would be set to apply in this matter and is to occupy a half day appeal would amount to some $995.00.

[2]      Turning first to deal with the application for security for costs Mr Armstrong for the appellants has contended that the interests of justice in this case are such that no security for costs should be required.

[3]      He confirms that the appellant who are the neighbours of the respondent relating to the disputed fence in question own some four hectares of land adjoining the Ngai Tahu land.  In addition he says they own further land which I understand

might be across the road.

GOSNEY v NGAI TAHU PROPERTY LIMITED [2015] NZHC 203 [18 February 2105]

[4]      The appellants are market gardeners and Mr Armstrong informs the Court that they have been operating as such, I understand, from this property in Marshlands for some 50 years.

[5]      He confirms that in his words “they are not going anywhere” and they are

“good for the money” in this case should the appeal fail.

[6]      As a result Mr Armstrong contends there is no need for security for costs to be ordered here.

[7]      He also was at some pains to indicate to the Court some matters involving what seems to me to be the rather tortured history of this dispute.

[8]      In response Mr Riches for the respondent contended that this was simply a normal appeal where the usual rule that security for costs are required to be paid by the   appellant   should   apply.      He   contended   that   there   are   no   exceptional circumstances which might apply in this case and in doing so he referred me to a

decision Denzel v ACC1 referring to these aspects.

[9]      On balance at this point I take the view that there is nothing specific before this Court to suggest that this appeal is in any way out of the ordinary such that security for costs should not be required.  There is no suggestion that the appellants are impecunious in any way or at this stage that some special circumstances might exist such that the interests of justice demand that security for costs be waived.

[10]     Accordingly the application from the appellants to dispense with security for costs here is dismissed.

[11]     That said, I now turn to the directions which are required for this appeal.

[12]     These directions are as follows:

1      Denzel v ACC 11 December 2002, HC Wellington CP135/02.

(a)       This  appeal  is  now set  down for  hearing (half  a day is  allowed)

commencing at 10 a.m. on 17 March 2015.

(b)Security for costs of $995 is to be paid by the appellants within 10 working days of today.

(c)       A direction is made that the District Court is to provide a transcript of the hearing in the District Court for the purposes of this appeal.

(d)This matter is to be regarded as a category 2 matter for costs purposes insofar as the appeal is concerned.

(e)       Submissions of the appellants for this appeal are to be filed and served by 25 February 2015.

(f)       Submissions  from  the  respondent  are  to  be  filed  and  served  by

4 March 2015.

...................................................

Gendall J

Solicitors:

Young Hunter, Christchurch

Saunders & Co, Christchurch