Hill v Maori Trustee - [2018] NZCA 17

IN THE COURT OF APPEAL OF NEW ZEALAND

CA622/2017
[2018] NZCA 17

BETWEEN	FREDRICK HILL Appellant
AND	MĀORI TRUSTEE Respondent

Counsel:

Appellant in person
C M Reuhman for Respondent

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…

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: [2018] NZCA 17
Decision Date: 16 February 2018 at 2.30 pm

CaseChat Overview and Summary

The case of Hill v Māori Trustee is an appeal by Fredrick Hill against a decision of the Deputy Registrar to require him to provide security for costs in an appeal against the refusal of the High Court to set aside a bankruptcy notice. The Māori Trustee is the respondent in the appeal. The legal issue before the Court of Appeal was whether the Deputy Registrar correctly declined Mr Hill’s application to dispense with security for costs. The Court of Appeal held that the Deputy Registrar’s decision was correct and that there was no basis for dispensing with security for costs. The Court of Appeal considered that the appeal was unlikely to succeed and that it might be vexatious, given the history of litigation between the parties. The Court of Appeal also noted that the appeal did not involve any issues of public interest, and that there was no basis for concluding that the judgment debt would be remitted or that Mr Hill had an available cross-claim to justify setting aside the bankruptcy notice.

The Court of Appeal reviewed the Deputy Registrar’s decision and found that it was correct. The Court of Appeal agreed with the Deputy Registrar that Mr Hill was not impecunious, and that the potential benefits of the appeal were not clear and may not outweigh the potential costs. The Court of Appeal also noted that the appeal seemed to repeat arguments that had already been considered and rejected by courts previously, and that 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. The Court of Appeal considered it arguable that the proposed appeal was vexatious, given the history of litigation between the parties.

The Court of Appeal declined Mr Hill’s application to review the Deputy Registrar’s decision declining to dispense with security for costs. The Court of Appeal extended the time for the payment of security for costs to 9 March 2018. The Court of Appeal also noted that the appeal lacked merit and that a reasonable and solvent litigant would not proceed with it.

The final orders of the Court of Appeal were that the application to review the Deputy Registrar’s decision declining to dispense with security for costs was declined, and that Mr Hill was to pay the sum of $6,600 by way of security for costs by 9 March 2018.

Orders