McCready v Green Cabs Limited - [2013] NZCA 646

IN THE COURT OF APPEAL OF NEW ZEALAND

CA698/2013
[2013] NZCA 646

BETWEEN	GRAHAM EDWARD MCCREADY Applicant
AND	GREEN CABS LIMITED AND CALLUM BROWN Respondents

Counsel:

Applicant in person
G D Pearson for Respondents

Judgment:

(On the papers)

18 December 2013 at 3.00 pm

JUDGMENT OF STEVENS J
(Review of Registrar’s decision refusing to dispense with security for costs)

AThe application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.
BMr McCready is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.

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REASONS

Introduction

The applicant Graham Edward McCready appeals against a decision of Ronald Young J in the High Court adjudicating Mr McCready bankrupt on 4 October 2013.[1] The reasons for the decision were given in a comprehensive judgment following a hearing in which Mr McCready opposed the making of any bankruptcy order.[2] The first-named respondent, Green Cabs Ltd, sought the order when Mr McCready failed to pay a judgment debt of $10,230.80.
[1]McCready v Green Cabs Ltd [2013] NZHC 2594.
[2]Mr McCready argued, relying on s 37(c) and (d) of the Insolvency Act 2006, that it was just and equitable that no order of adjudication be made or that there were other reasons why an order of adjudication should not be made. In particular Mr McCready submitted that he had a realistic plan to pay off his debts through a summary instalment order (pursuant to subpart 3 of the Insolvency Act) and had applied to the Trustee and Insolvency Service. However, no such order had been made by the time of the hearing.
Mr McCready has filed a notice of appeal on 11 October 2013 in which he sets out some 10 grounds of appeal which, he says, amount to a substantial miscarriage of justice.
On 1 November 2013 Mr McCready applied to the Registrar under r 35(6) of the Court of Appeal (Civil) Rules 2005 (the Rules) to dispense with security. In a decision dated 19 November 2013 the Registrar declined Mr McCready’s application to dispense with security. Mr McCready has now sought a review of the Registrar’s decision.[3]

The Registrar’s decision

[3]Under r 7(2) of the Court of Appeal (Civil) Rules 2005.

The Registrar’s reasons for refusing to dispense with security included the following:
On 1 November 2013 the Registry received your application to waive security for costs on the grounds that if you had the amount required it would be unlikely you would have been bankrupted, you would be committing [an] offence … under the Insolvency Act and that if you paid and lost your appeal the amount would go to the Official Assignee not the judgment creditor. You also state that the appeal raises substantive issues which mean it is in the public interest and the administration of justice for security for costs to be waived.
I note you also state in your application that security for costs was set at $58,880.00. As…

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 McCready v Green Cabs Limited

Details

AGLC: McCready v Green Cabs Limited [2013] NZCA 646
Case: [2013] NZCA 646
Decision Date: 18 December 2013 at 3.00 pm

CaseChat Overview and Summary

In McCready v Green Cabs Limited, Graham Edward McCready appeals against the High Court's decision to adjudicate him bankrupt. The High Court ordered the bankruptcy following Mr McCready's failure to pay a judgment debt of $10,230.80 to Green Cabs Limited. The Court of Appeal was tasked with reviewing the Registrar's decision to deny Mr McCready's application to waive the security for costs required to pursue the appeal.

The primary legal issue before the Court was whether the Registrar's decision to refuse to dispense with the security for costs was justified. Mr McCready argued that he was impecunious and that the appeal raised issues of public importance, thereby warranting a waiver of the security. The respondents, Green Cabs Limited and Callum Brown, opposed the waiver, asserting that the appeal did not present exceptional circumstances or matters of significant legal principle that necessitated reconsideration.

The Court of Appeal examined the principles governing the waiver of security for costs and noted that while impecuniosity could be a factor, it was not sufficient on its own to warrant a waiver. The Court highlighted that exceptional circumstances and the public interest in the appeal's determination were crucial considerations. Mr McCready's appeal, focusing on alleged errors in the High Court's adjudication process, did not appear to meet these criteria. The Court found no significant legal errors or matters of public importance that would warrant a departure from the usual requirement for security for costs.

Accordingly, the Court dismissed Mr McCready's application for review of the Registrar's decision and confirmed that he must pay the security for costs of $5,880 within 20 working days of the judgment date.

Orders