Lowe v Hemara

[2023] NZCA 134

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA315/2022
 [2023] NZCA 134

BETWEEN	KELLEE LOUISE LOWE Appellant
AND	JOHN SHANE HEMARA Respondent

Court:	Courtney, Venning and Downs JJ
Counsel:	No appearance for Appellant S A Grant for Respondent
Judgment: (On the papers)	28 April 2023 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal is struck out.

BThe appellant is to pay the respondent costs and disbursements in accordance with [6]. The security for costs paid in relation to this appeal is to be paid to the respondent in reduction of the costs awarded.

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REASONS OF THE COURT
(Given by Courtney J)

1. Ms Lowe appealed a decision of Associate Judge Sussock ordering that a caveat, lodged by Mr Hemara over a property owned by Ms Lowe, not lapse.[1]  The appeal was set down for hearing on 21 March 2023.  On 8 December 2022 Ms Lowe was directed to file submissions by 14 February 2023.  She failed to comply with that direction.  On 21 February 2023 Ms Lowe’s counsel sought and was granted leave to withdraw on the grounds of non-payment of fees and lack of instructions regarding the appeal.

   [1]Hemara v Lowe [2022] NZHC 1215.

2. On 25 February 2023 Mr Hemara applied under r 44A of the Court of Appeal (Civil) Rules 2005 to strike out Ms Lowe’s appeal on the ground that, in these circumstances, it would be unfair to require him to incur the cost of further preparation for the hearing.   

3. Rule 44A(1)(a) permits the Court to strike out an appeal if the appellant is in continuing default in complying with any procedural direction or order made by a Judge.  The rule requires that a party be given 10 working days’ notice of the Court’s intention to consider striking out the appeal.[2]  Mr Hemara’s application is based on Ms Lowe’s failure to comply with the Court’s direction requiring her to file submissions in advance of a fixture date.

   [2]Court of Appeal (Civil) Rules 2005, r 44A(2)(a).

4. On 9 March 2023 the fixture was vacated and notice was given pursuant to r 44A(2) requiring Ms Lowe to comply with the direction to file submissions by 24 March 2023.[3]  She did not do so.  Nor did she take any other steps in the appeal.  

   [3]Lowe v Hemara CA315/2022, 9 March 2023.

5. We are satisfied that the appropriate course is to strike out the appeal.  We make an order to that effect.

6. Mr Hemara is entitled to costs for preparation for a standard appeal on a band A basis, for preparation of the application to strike out the appeal, and for disbursements in accordance with Schedule 1 to his application to strike out the appeal dated 25 February 2023.  The security for costs paid in relation to this appeal is to be paid to Mr Hemara in reduction of the costs awarded.

Solicitors:
Carter Atmore, Auckland for Respondent