Jones v New Zealand Bloodstock Finance & Leasing Limited

[2020] NZCA 520

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA350/2020
 [2020] NZCA 520

BETWEEN	GREGORY JOHN JONES Appellant
AND	NEW ZEALAND BLOODSTOCK FINANCE & LEASING LIMITED Respondent

Counsel:	Appellant in person F A King and A Osama for Respondent
Judgment: (On the papers)	22 October 2020 at 9.00 am

JUDGMENT OF MILLER J
(Review of Registrar’s Decision)

AThe application for review of the Deputy Registrar’s decision is declined.

BSecurity for costs of $7,060 is payable within 10 working days of this judgment.

____________________________________________________________________

REASONS

1. Mr Jones seeks a review of the Deputy Registrar’s decision on security for costs in relation to his appeal against a decision of Jagose J in the High Court.[1] 

Background

[1]New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 1233.

1. Mr Jones and the respondent, New Zealand Bloodstock Finance & Leasing Ltd (NZ Bloodstock), are in a dispute relating to credit advances NZ Bloodstock made to Mr Jones.  NZ Bloodstock sought summary judgment in the High Court for $431,632.22 (plus interest and solicitor-client costs) owing by Mr Jones pursuant to these credit agreements.  Mr Jones disputes the repayment amount.  On 5 June 2020 Jagose J granted summary judgment in favour of NZ Bloodstock.  On 9 July 2020, Jagose J declined to stay execution of the judgment.[2]

   [2]New Zealand Bloodstock Finance & Leasing Ltd v Jones [2020] NZHC 1633.

2. Mr Jones filed an appeal against the High Court judgment on 3 July 2020.  Security for costs was set at $14,120.  This amount was set in error and was corrected by the Deputy Registrar when Mr Jones applied for reduction or dispensation of security for costs.  In her decision, the Deputy Registrar reduced security for costs to $7,060, in accordance with r 35(5) of the Court of Appeal (Civil) Rules 2005.  She declined to reduce the amount further, finding that:

   (a)Mr Jones is not impecunious.  An allegation of deliberate financial harm by NZ Bloodstock was not compelling. 

   (b)The appeal does not engage a genuine issue of public interest. 

   (c)The appeal is arguable and the potential benefits of the appeal outweigh the potential costs.

3. The Deputy Registrar concluded that it would not be right to require NZ Bloodstock to defend the judgment under appeal without the usual amount of security for costs.  Mr Jones applies for a review of this decision.[3] 

Analysis

[3]Court of Appeal Civil Rules 2005, r 5A(3).

1. The Registrar may dispense with security for costs if they are satisfied that the circumstances warrant it.[4]  The Supreme Court considered circumstances that would warrant dispensation in Reekie v Attorney-General.[5]  The Court identified two grounds upon which security for costs is likely to be dispensed with:[6]

   (a)where costs are unlikely to be ordered against the appellant;  or

   (b)where the appellant either cannot pay or will suffer severe hardship if payment is required.

   [4]Rule 35(6)(c). 

   [5]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

   [6]At [19].

2. Mr Jones argues that the security for costs payable should be reduced significantly or dispensed with.  He alleges that NZ Bloodstock has engaged in a deliberate effort to financially impede him and his bloodstock business.  He maintains that the merits of his appeal are such that it is in the interests of justice to reduce or dispense with security for costs.  To that end he invites the Court to examine the merits of his appeal.  He adds that he will pursue the appeal diligently and that the appeal is meritorious.  He argues that the appeal is important as it raises significant issues in relation to the summary judgment procedure, particularly due to his position as an officer of the Court. 

3. NZ Bloodstock opposes the application.  It argues that the protection of security for costs is necessary, given that Mr Jones has not complied with the High Court’s judgment to pay the outstanding amount despite his application for a stay being declined. 

4. I accept that the appeal is arguable, but beyond that I decline Mr Jones’s invitation to speculate on its merits.  There is no reason why NZ Bloodstock should have to defend the judgment under appeal without the usual protection provided by security for costs.[7]  He has not claimed that he would be unable to prosecute his appeal, and there is no reason to suppose he will escape a costs award if he loses.

Result

[7]At [21].

1. The application for review of the Deputy Registrar’s decision is declined.

2. Security for costs of $7,060 is payable within 10 working days of this judgment.

Solicitors:
McKenna King Ltd, Hamilton for Respondent