Kumar as executor of the Estate of Kumar v Westpac Life NZ Limited

IN THE COURT OF APPEAL OF NEW ZEALAND
CA442/2008
[2008] NZCA 399
BETWEENROSELYN SANGITA KUMAR AS EXECUTOR OF THE ESTATE OF MANOJ KUMAR, ALSO KNOWN AS MANOJ MICHAEL KUMAR

Appellant

ANDWESTPAC LIFE NZ LIMITED

Respondent

Counsel:M Clark for Appellant

L Gellert for Respondent

Judgment:
(on the papers) 30 September 2008 at 10.30 am

JUDGMENT OF ARNOLD J

The application for review of the Registrar’s decision is refused.
REASONS
[1]       The appellant has appealed against a decision of Associate Judge Abbott granting summary judgment in favour of the respondent and dismissing the appellant’s application for summary judgment in her favour: HC AK CIV 2007-404-006822 30 June 2008. The question on the appeal is whether the appellant’s husband died in circumstances falling within the scope of an interim accidental death cover certificate provided by the respondent.
[2]       The appellant applied to the Registrar for a reduction in the amount of security for costs from $4,740 to $1,000. The ground advanced was that the appeal raised a narrow point (the meaning of “accident”), so that the matter would take only a short time to argue - approximately one hour.
[3]       The respondent opposed the application.   It said that the hearing was likely to take longer than one hour and, in any event, the appeal lacked any merit and any costs awarded to the respondent if the appeal failed would exceed $1,000. The respondent noted that the appellant was not legally aided and that she had not yet paid the costs awarded to the respondent in the High Court.
[4]       The Registrar rejected the appellant’s application by letter dated 6 September 2008. The appellant now seeks a review of that decision.
[5]       The ground advanced by the appellant on review is the same as that put to the Registrar, namely that the point in the substantive appeal is a narrow one which will take approximately one hour to argue.
[6]       I am not prepared to interfere with the Registrar’s decision. The hearing in the High Court was, apparently, set down for half a day but took only about one and a half hours. The costs and disbursements awarded to the respondent following that hearing totalled $7,170. Under the new costs regime applicable in this Court, even if the hearing were to take only one hour, the costs awarded to the respondent if the appeal fails are likely to be well in excess of $1,000. In these circumstances, there being no other point raised, there is no basis upon which I could properly conclude that the Registrar’s decision is wrong.
[7]       Accordingly, the application is rejected.
Solicitors:
Vallant Hooker & Partners, Auckland for Appellant
Simpson Grierson, Auckland for Respondent

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Kumar as executor of the Estate of Kumar v Westpac Life NZ Limited was heard. The appellant, Roselyn Sangit Kumar, acting as the executor of the estate of Manoj Kumar, sought to appeal a decision by Associate Judge Abbott who granted summary judgment in favour of the respondent, Westpac Life NZ Limited. The central issue was whether the death of Manoj Kumar fell within the scope of the interim accidental death cover certificate issued by Westpac Life NZ Limited. The appellant had previously applied to the Registrar for a reduction in the security for costs from $4,740 to $1,000, arguing that the appeal raised a narrow point concerning the meaning of "accident" and would take approximately one hour to argue. The respondent opposed this application, stating that the appeal was likely to take longer than one hour and lacked merit. The Registrar rejected the appellant's application, and she now seeks a review of that decision.

The court needed to determine if the appeal's narrow point would justify a reduction in security for costs. The respondent argued that even if the appeal hearing lasted only one hour, the costs awarded to the respondent if the appeal failed would likely exceed $1,000. The respondent also noted that the appellant was not legally aided and had not yet paid the costs awarded in the High Court. The court considered these points and found that there was no basis to conclude that the Registrar's decision was incorrect. The appeal raised a specific and narrow issue, but the potential costs if the appeal failed and the lack of legal aid support meant that the Registrar's decision was reasonable.

The court refused the application for review of the Registrar’s decision. The reasoning was that even though the substantive appeal had a narrow point, the potential costs if the appeal failed were significant. The court found that the appeal was unlikely to merit a reduction in security for costs and that the Registrar's decision was correct. The appeal did not present a compelling case for altering the security for costs, and the Registrar's assessment was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established