Hill v Maori Trustee
[2018] NZCA 17
•16 February 2018 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA622/2017 [2018] NZCA 17 |
| BETWEEN | FREDRICK HILL |
| AND | MĀORI TRUSTEE |
| Counsel: | Appellant in person |
Judgment: (On the papers) | 16 February 2018 at 2.30 pm |
JUDGMENT OF BROWN J
(Review of Registrar’s decision)
AThe application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined.
BThe appellant is to pay the sum of $6,600 by way of security for costs by 9 March 2018.
____________________________________________________________________
REASONS
On 10 January 2018 Mr Hill sought review of a decision by the Deputy Registrar pursuant to r 7(2) of the Court of Appeal (Civil) Rules 2005. The decision of the Deputy Registrar dated 21 December 2017 declined Mr Hill’s application to dispense with security for costs on his appeal filed on 30 October 2017. The decision directed that security remained at $6,600 and was to be paid by 9 February 2018.
The appeal itself is against a decision of Associate Judge Smith in the High Court which dismissed Mr Hill’s application to set aside a bankruptcy notice which had been served on Mr Hill by the Māori Trustee (the Trustee).[1]
[1]Māori Trustee v Hill [2017] NZHC 2377.
The context for the proposed appeal is that Mr Hill has been in dispute with the Trustee for several years in respect of a lease of Māori freehold land at Mangatainoka which the Trustee granted to Mr Hill in 2006. As the decision of the Deputy Registrar records, the Trustee issued proceedings against Mr Hill alleging breach of the terms of the lease.
Following a defended hearing in the District Court the Trustee was awarded damages of some $87,000 plus costs as well as possession of the land in cancellation of the lease.[2] The bankruptcy notice, which was the subject of the application to set aside heard by Associate Judge Smith, related to the award of damages and costs.
[2]Māori Trustee v Hill DC Palmerston North CIV-2011-054-533, 23 February 2015.
Mr Hill’s appeal of that decision was dismissed.[3] His application for leave to appeal to this Court was declined.[4] This Court declined Mr Hill’s application for a stay of proceedings[5] and his application for leave to appeal.[6]
[3]Hill v Māori Trustee [2016] NZHC 364.
[4]Hill v Māori Trustee [2016] NZHC 1847.
[5]Hill v Māori Trustee [2016] NZCA 380.
[6]Hill v Māori Trustee [2016] NZCA 487.
Nevertheless it appears that Mr Hill’s challenge to the bankruptcy notice is based on his unwillingness to accept the outcome of the prior litigation. As the grounds in his application for review state:
At the centre of the appeal is the provable allegation of constructive fraud to obtain a judgment as a basis to bankrupt the judgment debtor and further to maintain that position throughout attempts to raise further evidence as proof prejudicial to due process and full consideration distinguishable facts by the court.
Those grounds also refer to matters which I infer relate to a ground of his original application described by the Deputy Registrar as follows: judgment should not have been obtained against Mr Hill because he acquired an equitable interest in the land and the Māori Appellate Court has not determined title in an objective and impartial manner.
Security for costs should not be dispensed with except where it is right to require the respondent to respond to an appeal brought by an impecunious appellant without the usual protection for costs provided by security.[7] Where the appeal is one that would not be pursued by a sensible, solvent litigant, there will be no basis for dispensing with security for costs.[8]
[7]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [21].
[8]At [35].
I have reviewed the Deputy Registrar’s decision. For the reasons given by her, I agree that there should be no dispensation of security for costs. In particular:
(a)The Deputy Registrar correctly identified and applied the principles laid down by the Supreme Court in Reekie v Attorney-General.[9]
(b)The Deputy Registrar was unable on the information available and which had been shared with the Māori Trustee to conclude that Mr Hill was impecunious. She therefore proceeded to consider other Reekie factors, observing that if an assessment of those factors led her to conclude that security ought not to be dispensed with even if Mr Hill was presumed to be impecunious, there would be no point requesting and considering any further financial information.
(c)The Deputy Registrar considered that the potential benefits of Mr Hill’s appeal were not clear and may not outweigh the potential costs.
(d)The Deputy Registrar considered that the appeal involved no issues of public interest. While recognising that the issues which Mr Hill wished to address in the Māori Land Court might be of some public interest, the Deputy Registrar correctly observed that they were not the subject of his appeal against the refusal to set aside a bankruptcy notice which turned on facts unique to the parties. Persons other than the parties would not be affected by the Court’s decision.
(e)The Deputy Registrar observed that the notice of appeal seemed merely to repeat arguments that had already been considered and rejected by courts previously. However those judgments could not be challenged and are not under appeal. There appeared to be no basis for concluding that the judgment debt would be remitted nor that Mr Hill had an available cross-claim to justify setting aside the bankruptcy notice. Hence the Deputy Registrar concluded that the appeal lacked merit and that a reasonable and solvent litigant would not proceed with it.
(f)In Reekie the Supreme Court stated that protecting respondents from vexatious appeals is a legitimate purpose of the security for costs regime.[10] Noting the history of litigation between Mr Hill and the Māori Trustee, the Deputy Registrar considered it arguable that the proposed appeal was vexatious.
[9]Reekie v Attorney-General, above n 7.
[10]Reekie v Attorney-General, above n 7, at [39].
I conclude that Deputy Registrar’s decision was correct.
The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined.
The time for the payment of security for costs is extended to 9 March 2018.
Solicitors:
Te Tumu Paeroa, Wellington for Respondent
5
0