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

[2008] NZCA 399

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