King v ASB Bank Limited - [2014] NZCA 102

IN THE COURT OF APPEAL OF NEW ZEALAND

CA810/2013
[2014] NZCA 102

BETWEEN	BRUCE JAMES KING Appellant
AND	ASB BANK LIMITED Respondent

Counsel:

Appellant in person
P V Shackleton for Respondent

Judgment:

(On the papers)

27 March 2014 at 3 pm

JUDGMENT OF ELLEN FRANCE J
(Review of Registrar’s decision)

AThe application for review of the Registrar’s decision refusing to dispense with security for costs is dismissed.
BSecurity for costs of $5,880.00 must be paid into Court by 28 April 2014.

____________________________________________________________________

REASONS

Introduction

The appellant brought a proceeding in the High Court seeking to have loan agreements with the respondent, the ASB Bank Ltd (the Bank), reopened on the basis the Bank breached the Credit Contracts and Consumer Finance Act 2003 and/or the Fair Trading Act 1986. Mr King also sought to have the Bank’s notice of its intention to exercise its power of sale under s 119 of the Property Law Act 2007 set aside.
The Bank had security over a property in Auckland and sold that property pursuant to its rights as mortgagee. The sale proceeds were not sufficient to discharge all of Mr King’s indebtedness to the Bank. The Bank sought to recover its shortfall. The Bank accordingly filed a counterclaim to Mr King’s proceeding and sought summary judgment in respect of its counterclaim, as well as defendant’s summary judgment in relation to Mr King’s claims against the Bank.
Katz J made orders for summary judgment against Mr King.[1] Mr King has appealed against the decision of Katz J.
[1]King v ASB Bank Ltd [2013] NZHC 2914.
In this Court, the Registrar set security for costs in the sum of $5,880. The appellant unsuccessfully sought dispensation from the requirement to pay security. In a letter dated 19 February 2014, the Registrar declined to dispense with security and ordered security to be paid by 19 March 2014. The appellant now seeks a review of the decision refusing to dispense with security.

Approach

In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[2] An appellant may apply to the Registrar for a waiver and the Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[3] The circumstances in which security will be waived have been described as follows:[4]
[7] Security for costs will be waived where it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver. The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined. Impecuniosity alone is not usually sufficient to justify a waiver, but may be a reason to reduce the quantum of security.

The application for dispensation

[2]Court of Appeal (Civil) Rules 2005, r 35(2).

[3]Rule 35(6).

[4]

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: [2014] NZCA 102
Decision Date: 27 March 2014 at 3 pm

CaseChat Overview and Summary

In this case, the appellant, Bruce James King, sought to appeal against a decision of Katz J in the High Court, which had granted summary judgment to the respondent, ASB Bank Limited, in a proceeding brought by Mr King. Mr King argued that the Bank breached the Credit Contracts and Consumer Finance Act 2003 and/or the Fair Trading Act 1986, and sought to have the loan agreements reopened and the Bank's notice of its intention to exercise its power of sale under s 119 of the Property Law Act 2007 set aside. The Bank had security over a property in Auckland, which it sold due to Mr King's failure to meet his obligations, and sought to recover the shortfall. The Registrar of the Court of Appeal set security for costs in the sum of $5,880, which Mr King sought to have dispensed with. The primary issue before the Court was whether the Registrar's decision to refuse to dispense with security for costs should be reviewed and set aside.

The Court found that the Registrar's decision to refuse to dispense with security for costs was correct. The Court considered the appellant's financial situation and found that it did not meet the exceptional circumstances required for a waiver of security for costs. The Court also found that the merits of the appeal did not favour the appellant, and there were no significant public interests in having the appeal determined. The Court held that the interests of justice required that the respondent should have the protection of a full sum of security.

As a result of this decision, the application for review of the Registrar's decision refusing to dispense with security for costs is dismissed. Mr King must pay the security for costs of $5,880.00 into Court by 28 April 2014.

Orders