Mailley v Shaw
[2022] NZCA 180
•12 May 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA643/2021 [2022] NZCA 180 |
| BETWEEN | MARTIN MAILLEY |
| AND | ANTONY SHAW |
| Counsel: | Appellant in person |
Judgment: | 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.
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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 Rules 2016 as in force immediately after that date, except as provided in subclause (3).
On 1 March 2017, the daily recovery rate in the High Court Rules was $3,300, not $3,530.[6]
[6]This came into force on 1 July 2015 under the High Court Amendment Rules 2015 and was repealed on 1 August 2019 by the High Court Amendment Rules 2019.
Mr Mailley submits that sch 5, cl 11(2) of the Senior Courts Act preserves the daily recovery rate of $3,300 for his proceedings.
Opposition
The respondents oppose Mr Mailley’s application for recall and submit that sch 5, cl 11(2) of the Senior Courts Act does not preserve the daily recovery rate in relation to calculations for security for costs.
Relevant case law
There are no cases that have directly addressed whether sch 5, cl 11(2) of the Senior Courts Act preserves the daily recovery rate when calculating security for costs in appeals. However, some cases have indirectly touched on this issue, including Stokes v Prain[7] and Clarke v Kiwirail Ltd.[8] Those proceedings were commenced in the High Court in 2014 and 2015, and appeals were filed in this Court in 2020 and 2019 respectively. In both cases the Deputy Registrar set security for costs using the daily recovery rate of $3,530, and this Court declined an application for review of the Deputy Registrar’s decision not to dispense with security for costs. Schedule 5, cl 11(2) of the Senior Courts Act was however not brought to the Court’s attention in either case.
Analysis
[7]Stokes v Prain [2020] NZCA 627.
[8]Clarke v Kiwirail Ltd [2020] NZCA 59.
When the Court of Appeal Rules were enacted in 2005, the formula for calculating security for costs in this Court was set by reference to the daily recovery rate for category 3 proceedings in the High Court Rules.[9] This did not preserve a particular daily recovery rate, but instead would incorporate the daily recovery rate in force at the time that security for costs was set.
[9]The High Court Rules were in sch 2 of the Judicature Act 1908 at the time.
When the Senior Courts Act came into force on 1 March 2017, sch 5, cl 11(2) ensured that High Court proceedings under the High Court Rules in force before 1 March 2017 would continue under the same High Court Rules. There is, however, no indication that sch 5, cl 11(2) was intended to change this Court’s approach to calculating security for costs by preserving a particular daily recovery rate instead of using the daily recovery rate in force at the time that security for costs is set.
In my view, sch 5, cl 11(2) was not intended to change this Court’s approach to calculating security for costs. I consider this interpretation to be more consistent with the legislative context above and with this Court’s approach in Stokes v Prain and Clarke v Kiwirail Ltd.[10]
[10]Stokes v Prain, above n 7; and Clarke v Kiwirail Ltd, above n 8.
It follows that the Deputy Registrar was correct to set security for costs using the daily recovery rate of $3,530.
Result
The application for recall is declined.
Mr Mailley must pay the respondents costs for a standard application on a band A basis and usual disbursements.
Solicitors:
Ord Legal, Wellington for First Respondent
Lee Salmon Long, Auckland for Second Respondent
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