Hill v Māori Trustee - [2019] NZCA 243

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA622/2017
[2019] NZCA 243

BETWEEN	FREDRICK HILL Applicant
AND	MĀORI TRUSTEE Respondent

Hearing:	17 June 2019
Court:	French, Miller and Wild JJ
Counsel:	Applicant in Person C M Reuhman for Respondent
Judgment:	24 June 2019 at 11.30 am

JUDGMENT OF THE COURT

The application to strike out Mr Hill’s appeal for non-payment of security for costs is granted. No order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

The respondent applies under r 37(1) of the Court of Appeal (Civil) Rules 2005 to strike out this appeal for non-payment of security for costs.
The underlying appeal is a judgment declining Mr Hill’s application to set aside a bankruptcy notice.
There is an extensive procedural history in this Court concerning security for costs:
(a)On 21 December 2017, the Deputy Registrar declined to waive security for costs for the appeal.
(b)On 16 February 2018, Brown J upheld the Deputy Registrar’s decision.[1]
(c)Mr Hill did not pay security for costs as ordered and the Māori Trustee moved to strike out Mr Hill’s appeal. Mr Hill opposed the application, and at the oral hearing suggested he had been granted legal aid. In light of this assertion by Mr Hill, the Māori Trustee agreed at the hearing to abandon its application for strike-out. It later transpired, however, that Mr Hill had misinterpreted correspondence from Legal Aid: his application was merely pending. In this Court’s judgment of 31 July 2018, Clifford J declined the application for strike‑out by consent and directed that if Legal Aid decided to decline his application, Mr Hill was to pay security for costs within 20 working days of that decision.[2]
(d)On 19 November 2018, Mr Hill’s application for legal aid was declined. He gave us to understand that a legal advisor considered the appeal had no merit. In consequence he was required to pay security for costs by 17 December 2018. He did not do so.
(e)Mr Hill appealed Clifford J’s judgment to the Supreme Court. On 19 February 2019, that Court declined leave.[3]
(f)On 7 March 2019, the Māori Trustee filed a second application to strike out Mr Hill’s appeal.
(g)On 31 May 2019, Mr Hill applied for a two-month adjournment of the present strike-out application due to a back fracture. French J declined the adjournment application on 4 June 2019 but suggested Mr Hill might appear by way of AVL.
[1]Hill v Māori Trustee [2018] NZCA 17.
[2]Hill v Māori Trustee [2018] NZCA 280.
[3]Hill v Māori Trustee [2019] NZSC 3.
The Māori Trustee submits that this matter has now dragged on for some 18 months with no payment of security for costs by Mr Hill. He has now thoroughly litigated the issue of security for costs and failed at each step. His litigation in various courts has prevented the beneficial owners of land at issue from enjoying a rental income since 2009. The lengthy…

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 243
Decision Date: 24 June 2019 at 11.30 am

CaseChat Overview and Summary

Fredrick Hill applied to the Court of Appeal of New Zealand to set aside a bankruptcy notice issued by the Māori Trustee. The Māori Trustee applied to strike out Hill's appeal on the basis that he had failed to pay security for costs, a requirement that had been previously upheld by the Court of Appeal. The procedural history of the case revealed that Hill had repeatedly failed to meet the deadlines for payment of the security for costs, despite being given multiple opportunities to do so. This included a period where Hill had erroneously believed he had been granted legal aid, which would have covered the costs. After his application for legal aid was declined, Hill still failed to pay the required security.

The legal issue before the Court was whether Hill's appeal should be struck out due to his non-payment of security for costs, as required by the Court of Appeal (Civil) Rules 2005. The Court of Appeal considered the extensive procedural history of the case, including the significant delays caused by Hill's failure to pay the security for costs. The Court also noted the prejudice suffered by the Māori Trustee and the beneficial owners of the land due to the prolonged litigation. Hill argued that he had been attempting to negotiate alternative financing but could not provide a definite timeline for payment. The Court was not persuaded to reconsider the necessity of the security for costs and granted the Māori Trustee's application to strike out Hill's appeal.

The Court of Appeal granted the Māori Trustee's application to strike out Hill's appeal for non-payment of security for costs. The Court noted that Hill had been given multiple opportunities to pay the security for costs but had failed to do so, causing significant delays and prejudice to the Māori Trustee. The Court made no order as to costs, as it had already determined that there was no reason for the Māori Trustee not to receive the benefit of security for costs.

Orders