Mailley v Shaw - [2022] NZCA 180

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA643/2021
[2022] NZCA 180

BETWEEN	MARTIN MAILLEY Appellant
AND	ANTONY SHAW First Respondent NEW ZEALAND LAW SOCIETY Second Respondent

Counsel:	Appellant in person D A Cowan and JEG San Diego for First Respondent T P Mullins and DAC Bullock for Second Respondent
Judgment: (On the papers)	12 May 2022 at 9.30 am

JUDGMENT OF COLLINS J

AThe application for recall is declined.
BMr Mailley must pay costs to the respondents for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS

Introduction

Mr Mailley has applied to recall my decision dated 8 March 2022,[1] in which I declined Mr Mailley’s application for a review of a Deputy Registrar’s decision concerning security for costs.

Background

[1]Mailley v Shaw [2022] NZCA 41 [Review of Deputy Registrar’s decision].

Mr Mailley is appealing against a decision of Toogood J.[2]
[2]Mailley v Shaw [2021] NZHC 2876.
The facts and procedural history are set out in my previous decision and do not need to be repeated.[3]
[3]Review of Deputy Registrar’s decision, above n 1, at [2]–[9].
In relation to Mr Mailley’s appeal, the Deputy Registrar set security for costs at $14,120. Mr Mailley applied for the Deputy Registrar to dispense with security for costs, which the Deputy Registrar declined. Mr Mailley then applied for a review of the Deputy Registrar’s decision, which I declined.[4]
[4]At [27].
Mr Mailley now applies for a recall of my decision on new grounds. He submits that the Deputy Registrar set security for costs too high because she used the wrong daily recovery rate.

Security for costs

Rule 35(5) of the Court of Appeal (Civil) Rules 2005 (Court of Appeal Rules) provides a formula for setting security for costs:
(5) The amount of security payable … is—
2 x a
where—
ais the daily recovery rate for category 3 proceedings that is specified in Schedule 2 of the High Court Rules 2016.
At the time the Deputy Registrar set security for costs in Mr Mailley’s appeal, the daily recovery rate in the High Court Rules 2016 was $3,530.[5]
[5]This came into force on 1 August 2019 under the High Court Amendment Rules 2019.
The Deputy Registrar used this daily recovery rate in the formula, which meant security for costs was 2 x $3,530 = $7,060. The Deputy Registrar then multiplied $7,060 by two because there were two respondents, which meant the total amount of security for costs that Mr Mailley had to pay was $14,120.

Application for recall

Mr Mailley submits that the Deputy Registrar used the wrong daily recovery rate because she failed to consider the effect of transitional provisions.
Mr Mailley’s proceedings commenced in the High Court in 2015.
Schedule 5, cl 11(2) of the Senior Courts Act 2016 is a transitional provision for proceedings commenced before 1 March 2017:
(2)A proceeding that is pending on 1 March 2017 must be continued, completed, and enforced under the High Court…

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 Mailley v Shaw

Details

AGLC: Mailley v Shaw [2022] NZCA 180
Case: [2022] NZCA 180
Decision Date: 12 May 2022 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Martin Mailley against Antony Shaw, with the New Zealand Law Society also involved, concerning an appeal against a High Court decision regarding security for costs. Mr Mailley's appeal centred on the amount of security for costs set by the Deputy Registrar, which he believed was too high. The Deputy Registrar had set the security for costs at $14,120, based on a daily recovery rate of $3,530, which Mr Mailley argued was incorrect due to the transitional provisions in the Senior Courts Act 2016.

The legal issue the Court of Appeal had to decide was whether the transitional provisions in Schedule 5, clause 11(2) of the Senior Courts Act preserved a specific daily recovery rate for calculating security for costs in appeals, or whether the Court should use the daily recovery rate in force at the time security for costs was set. Mr Mailley contended that the daily recovery rate should have been $3,300, which was in effect when his proceedings began in 2015, while the respondents argued that the Senior Courts Act did not intend to alter the Court's method of calculating security for costs.

The Court of Appeal concluded that Schedule 5, clause 11(2) of the Senior Courts Act was not intended to change the Court's approach to calculating security for costs by preserving a specific daily recovery rate. Instead, the Court should use the daily recovery rate in force at the time security for costs was set, which was consistent with the legislative context and the Court's approach in previous cases such as Stokes v Prain and Clarke v Kiwirail Ltd. Consequently, the Deputy Registrar was correct in using the daily recovery rate of $3,530, leading to the dismissal of Mr Mailley's application for recall.

Mr Mailley's application for recall was declined, and he was ordered to pay the respondents' costs for the standard application on a band A basis, along with usual disbursements.

Orders