Liguori v Bartoli - [2011] NZCA 315

IN THE COURT OF APPEAL OF NEW ZEALAND

CA659/2010
[2011] NZCA 315

BETWEEN ALFONSO LIGUORI
Applicant

AND FRANCESCO BARTOLI
Respondent

Counsel: Applicant in person
G Bogiatto for Respondent

Judgment: 8 July 2011 at 2.30 pm

JUDGMENT OF ARNOLD J

The application to review the Acting Registrar’s decision refusing to dispense with security for costs is allowed to the extent that the amount of security required to be paid is reduced to $2,500. This is to be paid by Friday 29 July 2011.

REASONS

Background

The appellant, Mr Liguori, who is insolvent, has filed an appeal against a decision of Associate Judge Doogue refusing to approve a compromise that he had entered into with all but one of his creditors.[1] In conjunction with his appeal, Mr Liguori applied for a dispensation from the obligation to pay security for costs.
[1] Liguori v Bartoli HC Auckland CIV-2010-404-2668, 6 September 2010.
In a letter dated 20 May 2011, the Acting Registrar declined Mr Liguori’s application, apparently on the basis that impecuniosity alone is not a ground for dispensing with security and there were no other circumstances sufficient to justify dispensation. I say “apparently” because the Acting Registrar’s letter is not clear as to the precise basis for her refusal. Mr Liguori now seeks a review of the Registrar’s decision.
Mr Liguori’s application for approval of a compromise was opposed by one creditor, the respondent, Mr Bartoli, who is represented by Mr Bogiatto. The respondent also opposed Mr Liguori’s application for dispensation from the requirement to pay security for costs.

Submissions

In support of his application for a dispensation, Mr Liguori noted that he is 68 years of age and without any significant means. Indeed, from the material provided, it seems that Mr Liguori’s financial position is parlous. He says that he should not be deprived of the chance to make some reparation to his creditors, who are generally supportive of him, and pursuing the appeal would allow him to achieve that.
In opposing the application, Mr Bogiatto submitted that Mr Liguori had no standing to bring the appeal as the application for approval of the compromise was brought in Mr Liguori’s name by his Provisional Trustee, Mr Noyce. In addition, Mr Bogiatto submitted that the appeal did not raise any novel or important issue, nor did it engage the public interest. Mr Bogiatto noted that impecuniosity alone does not justify a dispensation.

Discussion

The general position is that an appellant must provide security for costs in order to protect the respondent should the appeal fail. As Mr Bogiatto submitted, impecuniosity alone is not a sufficient reason to dispense with security, although it may justify a reduction in the amount of security required.[2] Security for costs will be waived where it is in the interests of justice to do so. Generally, exceptional circumstances are required.[3] The appellant must honestly intend to pursue the appeal and the appeal must be arguable as respondents should not face the threat of hopeless appeals without the provision of…

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.

Continue reading Liguori v Bartoli

Details

AGLC: Liguori v Bartoli [2011] NZCA 315
Case: [2011] NZCA 315
Decision Date: 8 July 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Alfonso Liguori against Francesco Bartoli, focusing on the issue of security for costs in an insolvent appellant's appeal against a decision on a compromise agreement. Liguori, who is insolvent, sought a dispensation from paying security for costs, which the Acting Registrar had refused. The Registrar's decision was based on the premise that impecuniosity alone does not justify dispensing with the security requirement and no other circumstances were sufficient to warrant dispensation. Liguori argued that his financial incapacity should allow him a chance to make reparations to his creditors, who generally support him. In opposition, Bartoli's counsel argued that the appeal did not raise any novel or important issues and did not engage the public interest, highlighting that impecuniosity alone is insufficient to warrant a dispensation.

The court examined the principle that an appellant must provide security for costs to protect the respondent in case the appeal fails, with the possibility of waiving this requirement if it is in the interests of justice. The court noted that while impecuniosity alone does not justify dispensing with security, it may warrant a reduction. The court also considered that the appeal must be arguable, and the issues raised should be significant or engage the public interest. In this case, the court found that although Liguori's appeal was not likely to be easy to argue, it was not hopeless. Given Liguori's limited financial resources and the nature of the appeal, the court decided to reduce the amount of security required, from $5,560 to $2,500.

The Court of Appeal allowed Liguori's application for review to the extent of reducing the security for costs amount, requiring Liguori to pay $2,500 by 29 July 2011. The court did not entirely dispense with the security requirement but considered it appropriate to reduce it considering Liguori's financial situation. The appeal was scheduled for 15 August 2011.

Orders