King v Norfolk Nominees Limited
[2019] NZCA 494
•16 October 2019 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA536/2014 [2019] NZCA 494 |
| BETWEEN | PAUL ANTHONY KING |
| AND | NORFOLK NOMINEES LIMITED |
| Court: | Kós P, Brown and Clifford JJ |
Counsel: | Appellant in person |
Judgment: | 16 October 2019 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is struck out.
BThere is no order as to costs.
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REASONS OF THE COURT
(Given by Clifford J)
On 28 August 2014, Associate Judge Matthews adjudicated bankrupt the appellant, Paul Anthony King, on the application of the respondent, Norfolk Nominees Ltd.[1] On 24 September 2014, Mr King filed a notice of appeal in this Court, alleging the Judge made numerous errors of fact and law.[2]
[1]Norfolk Financial Management Ltd v King [2014] NZHC 2051.
[2]Mr King did not apply for a suspension of the adjudication and his bankruptcy is unaffected by this appeal.
Mr King applied for security for costs to be dispensed with. The Registrar declined that application, a decision upheld on review by Stevens J, who ordered Mr King to pay security no later than 20 March 2015.[3] Shortly before that date, Mr King applied for an extension of time to pay security for costs. Stevens J declined to grant an extension.[4]
[3]King v Norfolk Nominees Ltd [2015] NZCA 16.
[4]King v Norfolk Nominees Ltd CA536/2014, 20 April 2015 (Minute of Stevens J).
Security for costs was never paid. Nor was the appeal deemed abandoned, because in December 2014 — within three months of the appeal being brought, as required — Mr King filed the case on appeal and a memorandum requesting the allocation of a hearing date.[5]
[5]Court of Appeal (Civil) Rules 2005, r 43(1).
Without payment of security for costs, the Registrar could not allocate a hearing date.[6] The appeal therefore lay dormant for several years until, on 9 August 2019, Clifford J issued a minute warning Mr King that the Court intended to consider whether to strike out his appeal pursuant to r 44A of the Court of Appeal (Civil) Rules 2005 for failing to prosecute it with due diligence and dispatch. The parties were invited to file memoranda. Mr King filed a lengthy memorandum reiterating the merits of his appeal and blaming the Registrar for the delay. Mr Vautier, for the respondent, submitted that the appeal should be struck out.
[6]Rule 37(2).
Mr King’s criticism of the Registrar is misconceived: the inaction is due to the fact he did not pay security for costs when it fell due. He was given a full opportunity to do so. Four years have now passed and the appeal has seen no progress for far too long. We are satisfied that Mr King has failed to prosecute the appeal with due diligence and dispatch.[7]
[7]Rule 44A(1)(b).
The appeal is struck out.
There is no order as to costs.
Solicitors:
Glaister Ennor, Auckland for Respondent
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