Hill v Maori Trustee - [2020] NZCA 219

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA519/2019
[2020] NZCA 219

BETWEEN	FREDRICK HILL Appellant
AND	MĀORI TRUSTEE Respondent

Court:	French and Courtney JJ
Counsel:	Appellant in Person I R Millard QC for Respondent
Judgment: (On the papers)	5 June 2020 at 2 pm

JUDGMENT OF THE COURT

The strike-out application is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Mr Hill was adjudicated bankrupt on 10 September 2019.[1] He filed an appeal within time. Security for costs was set at $7,060, to be paid by 6 November 2019. Mr Hill did not pay the security, nor did he apply for the security for costs to be dispensed with. Nor did he file the case on appeal, which was due for filing within three months after the filing of the appeal.[2]
[1]Māori Trustee v Hill [2019] NZHC 2250 [the bankruptcy judgment].
[2]Court of Appeal (Civil) Rules 2005, r 40(2).
The appeal was accordingly deemed abandoned in January 2020.[3] By then, however, the Māori Trustee (the applicant in the bankruptcy proceeding) had filed an application to strike out Mr Hill’s appeal on the ground of non-payment of security for costs under r 37(1) of the Court of Appeal (Civil) Rules 2005 (the Rules), which permits the Court to strike out an appeal if security for costs is not paid by the time payment is due. The Māori Trustee indicated that it wished to proceed with the application to strike out under r 37(1) rather than have the appeal deemed to have been abandoned.
[3]Rule 43.
Mr Hill, who is unrepresented, did not file a notice in opposition to the application. He failed to file written submissions as required. He also failed to provide an adequate explanation for not doing so. French J refused his application for an adjournment of the application and made clear that we would proceed to deal with the matter on the papers on 25 May 2020.[4]
[4]Hill v Māori Trustee CA519/2019, 19 May 2020.
No issue arises as to legal aid. Mr Hill has not given notice of the outcome of any such application under r 36(4) and Legal Aid Services has confirmed that, as at March 2020, Mr Hill had not applied for legal aid.

The strike-out application

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.[5] In Riccarton Construction Ltd v Coljon Ltd this Court observed that, as a matter of policy, unmeritorious appeals should not put respondents to unnecessary expense and consume scarce judicial resources.[6] In this situation, a respondent should not be put to the cost of preparing a case in opposition without the protection of security for costs being paid by the appellant.[7] Conversely, though, if the appeal appears arguable, access to justice ought not to be denied lightly.[8]
[5]See Turner v Davis [2012] NZCA 576 at [15]; and Riccarton Construction Ltd…

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: [2020] NZCA 219
Decision Date: 5 June 2020 at 2 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal filed by Fredrick Hill against a decision of the Māori Trustee. The primary issue was whether the appeal should be struck out due to Mr Hill's failure to provide security for costs as required by the Court of Appeal (Civil) Rules 2005. Mr Hill, who was unrepresented, did not pay the security for costs and failed to file the case on appeal within the stipulated time. Consequently, the appeal was deemed abandoned, but the Māori Trustee sought to have it formally struck out.

The court examined whether the appeal had any realistic prospect of success and whether it was just to allow the appeal to proceed. The Māori Trustee argued that Mr Hill's numerous attempts to challenge the underlying judgment debt had already been unsuccessful, making it unlikely that the appeal would succeed. Mr Hill's claims seemed to focus on the original judgment debt, which had been thoroughly reviewed and determined in previous proceedings.

The court concluded that Mr Hill's appeal was without merit and that it was appropriate to strike it out to prevent the Māori Trustee from incurring unnecessary expense. The history of litigation showed that all avenues to challenge the judgment debt had been exhausted, and there was no apparent error in the Associate Judge's decision.

The court granted the strike-out application, effectively dismissing Mr Hill's appeal. The ruling protected the Māori Trustee from further unnecessary litigation and ensured judicial resources were not wasted on unmeritorious appeals.

Orders