Hampton v Minter Ellison Rudd Watts - [2019] NZCA 159

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA485/2018
[2019] NZCA 159

BETWEEN	DAVID JOHN HAMPTON Applicant
AND	MINTER ELLISON RUDD WATTS First Respondent THE OFFICIAL ASSIGNEE Second Respondent COMMISSIONER OF INLAND REVENUE Third Respondent

Hearing:	13 May 2019
Court:	Brown, Gilbert and Collins JJ
Counsel:	Applicant in person S M Kinsler for Second and Third Respondents
Judgment:	15 May 2019 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply to dispense with security for costs is granted.
BThe application for an extension of time to apply for a hearing date and file a case on appeal is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

This judgment deals with two applications filed by Mr Hampton:
(a)an extension of time to apply to dispense with security for costs;[1] and
(b)an extension of time to apply for the allocation of a hearing date and file the case on appeal.[2]

Background

[1]Court of Appeal (Civil) Rules 2005, r 5(2).

[2]Rule 43.

On 5 June 2013, following an application from Minter Ellison Rudd Watts Mr Hampton was adjudged bankrupt. The Commissioner of Inland Revenue (the Commissioner) was a supporting creditor. Mr Hampton was due to be discharged from bankruptcy on 19 June 2017. The Official Assignee however, lodged an objection to Mr Hampton automatically being discharged. That application was determined in a judgment of the High Court dated 26 July 2018.[3] Venning J ordered that Mr Hampton be discharged from bankruptcy, subject to a number of conditions that were designed to prevent him from controlling, or taking part, in the management of any company or business without the prior approval of the Court.[4] Those conditions were directed to remain in place for four years.
[3]Minter Ellison Rudd Watts v Hampton (A Bankrupt) [2018] NZHC 1866.
[4]At [71].
On 21 August 2018, Mr Hampton filed a notice of appeal. Security for costs was set at $6,600. Mr Hampton sought, and was granted, an extension of time until 24 October 2018 to pay security for costs or apply for dispensation. He did not meet that deadline. Instead, on 31 October 2018, Mr Hampton notified the Registrar that he had been unable to raise the money required to pay the security for costs and that he accordingly sought a dispensation. There was then further correspondence from Mr Hampton to the Registrar in which he said he suffered an eye infection but that he was preparing an affidavit and submissions. He did not file those documents.
On 23 November 2018, the Registrar notified Mr Hampton:
(a)that the extension of time for paying security for costs or applying for dispensation had expired on 24 October 2018 and that Mr Hampton’s application of 31 October 2018 was out of time;
(b)that the appeal was now deemed to be abandoned pursuant to r 43; and
(c)that if Mr Hampton wished to pursue his appeal he would need to file an application under…

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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Details

Case: [2019] NZCA 159
Decision Date: 15 May 2019 at 3.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with two applications from Mr Hampton, who had been adjudged bankrupt and was subject to conditions for his discharge. The first application was for an extension of time to apply to dispense with security for costs, and the second was for an extension of time to apply for the allocation of a hearing date and file the case on appeal. Mr Hampton's appeal was deemed abandoned due to his failure to meet the deadlines for paying security for costs or applying for dispensation. Mr Hampton's reasons for delay were his anticipation of funds from a related liquidation proceeding and an eye infection at the time. The Court of Appeal considered the principles of security for costs and the specific circumstances of Mr Hampton's case, including his status as a litigant in person, the extent of his default, and the absence of prejudice to the other parties. The Court granted both applications, with a condition that if Mr Hampton's application to dispense with security was granted, he must ensure his appeal is heard as soon as possible. Mr Hampton was warned that any further delays or breaches of the Court’s timetable would likely result in his appeal being treated as abandoned.

Orders