Haden v Wells

[2013] NZHC 1639

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002890 [2013] NZHC 1639

BETWEEN  GRACE HADEN Applicant

ANDNEIL EDWARD WELLS First Respondent

WINIFRED NORIAN HOADLEY Second Respondent

GRAEME JOHN COUTTS Third Respondent

Hearing:                   9 July 2013

Appearances:           Applicant in person

B Atkins for Respondents

Judgment:                10 July 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 10 July 2013 at 4.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

HADEN v WELLS & ORS [2013] NZHC 1639 [10 July 2013]

[1]      Ms Haden has sought a dispensation of the standard security for costs that would  ordinarily be  ordered  in  her  appeal.    The  application  is  opposed  by the respondents.

[2]      The application is somewhat unusual because Ms Haden says that she is not impecunious, notwithstanding that the cost to her of this and other related litigation has clearly been high.  Indeed, it was her inability immediately to raise funds to meet an order of costs for some $12,000 on an interlocutory application in the District Court that led to her being debarred from defending the proceedings in that Court.  It is those proceedings (and her inability to defend them) that, in a general way, form the backdrop to these subsequent proceedings and, in particular, the judgment that she now seeks to appeal.

[3]      Rather, the basis for Ms Haden’s application is that:

(a)      she has paid security in the past and the amounts paid have not been uplifted by the respondents, which (she says) means she has paid costs twice;

(b)costs  that  have  been  previously  awarded  against  her  have  been wrongly and/or falsely calculated.

[4]      She also made submissions to me about the merits of her appeal and filed a quantity of supporting material.

[5]      Unlike security for costs in first instance  matters (which is governed  by r 5.45),  the  ordering  of  security  on  appeals  is,  essentially  the  default  position. Exceptional circumstances must be established to warrant a waiver.

[6] While I do not doubt Ms Haden’s sincerity, she is not able to meet the required threshold in this case. Even if she were able to establish the grounds she relies on (and the respondents have indicated that the allegations I have set out at [3] above are not accepted) they have little, if any, bearing on the issue. The first matter is something that Ms Haden will need to resolve with the respondents and with the

relevant registry.  She has indicated that she is already taking separate steps to pursue the second matter.  Importantly, there is nothing before me that suggests that making a standard order for security will prevent her from pursuing the appeal.

[7]      Ms Haden’s application is therefore declined.  She is to pay security in the sum of $995 to the Registrar within ten working days of the date of this decision.  If she does not do so then, by virtue of s 74(2) of the District Courts Act 1947, the appeal will be treated as having been abandoned and will be dismissed without any further call before this Court.

[8]      On  the  assumption  that  security will  be  paid  I also  make  the  following directions in relation to the appeal:

(a)      Ms Haden is to file and serve a common bundle of numbered and indexed copies of all relevant documents no later than 20 working days prior to the 4 September hearing date.

(b)      She is to file and serve his submissions and a chronology (if relevant)

no later than 15 working days prior to the date of the hearing.

(c)      The  respondents  are  to  file  and  serve  their  submissions  and  a chronology (if there is disagreement) no later than ten working days prior to the date of the hearing.

(d)The remaining provisions of the Sixth Schedule are to apply to this appeal.

[9]      Lastly, I record that Ms Haden has advised that she very sensibly no longer

pursues her challenge to the respondents’ choice of legal representation.

R Ellis J