He v Hard to find but worth the effort quality second hand books (Wellington) Limited (in liquidation)

In this case, Yong Quan He, Jun You He, and Jun Na He are the appellants, and Hard to Find but Worth the Effort Quality Second Hand Books (Wellington) Limited (in liquidation) is the respondent. The appeal relates to an election to distrain for unpaid rent and its effect on the right to terminate for non-payment of that rent. The case was heard in the Court of Appeal of New Zealand.

The primary legal issue was whether the appeal should be struck out due to the appellants' late payment of security for costs. The appellants filed their appeal on 8 August 2007, and security for costs was due by 5 September 2007. The appellants did not pay the security by the due date, and the respondent filed an application for strike-out on 8 October 2007. The appellants eventually paid the security on 2 November 2007. The court had to determine if the late payment warranted the dismissal of the appeal under rule 37 of the Court of Appeal (Civil) Rules.

The court found that while there is merit in the respondent's argument that the mandatory terms of rule 35 should be enforced, the appellants' prompt actions in filing the case on appeal and seeking a fixture played in their favour. The court also acknowledged that the High Court had considered leave to appeal was warranted. The appellants did not have an excuse for the delay in payment following receipt of the respondent's advice that it would seek to strike out, but they paid promptly once the present application was filed. The court dismissed the application to strike out the appeal and ordered the appellants to pay costs of $2,500 plus usual disbursements.