Hill v Māori Trustee
[2019] NZCA 243
•24 June 2019 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA622/2017 [2019] NZCA 243 |
| BETWEEN | FREDRICK HILL |
| AND | MĀORI TRUSTEE |
| Hearing: | 17 June 2019 |
Court: | French, Miller and Wild JJ |
Counsel: | Applicant in Person |
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.
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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 delays in this appeal to date have caused significant prejudice to the Māori Trustee and the beneficial owners.
Mr Hill said in written submissions that he has attempted to negotiate alternative financing and now seeks an audience with the Court to detail how costs can be met or to make a satisfactory proposition for consideration by the Court. Before us he advised rather that he is unable to say when he will pay.
The Court has already held that there is no reason why the Māori Trustee should not have the benefit of security for costs. We are not prepared to reopen the questions whether they ought to be paid, or whether they ought to be reduced.
Accordingly, the application is granted. The appeal is struck out. In the circumstances we make no order as to costs.
Solicitors:
Te Tumu Paeroa, Wellington for Respondent
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