McLeod v Giles-Pain

[2020] NZHC 369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-198

[2020] NZHC 369

BETWEEN

PATRICIA TUI MCLEOD

Appellant

AND

KEVIN GILES-PAIN and MICHAEL PRENTICE

Respondents

Hearing:

3 March 2020

Appearances:

Appellant in person supported by Mr A Ransfield as McKenzie Friend

L E Steel for the First Respondents

Judgment:

5 March 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 5 March 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MCLEOD v GILES-PAIN & Anor [2020] NZHC 369 [5 March 2020]

[1]                 The appellant,  Patricia  McLeod,  has  appealed  against  a  decision  of Judge Harrison in the District Court at Auckland. In a Minute dated 18 December 2019 Judge Harrison had struck out Mr Giles-Pain and Mr Prentice from an appeal to the District Court from the Tenancy Tribunal and awarded security for costs on the appeal in favour of Barfoot & Thompson. It is difficult to be clear exactly what issue Ms McLeod takes with Judge Harrison’s Minute but I have taken the view that she objects both to the removal of Mr Giles-Pain and Mr Prentice and the imposition of security for costs.

[2]                 Although this was the first call of the appeal Ms Steel for Mr Giles-Pain and Mr Prentice has applied for the appeal to be struck out. Ms Steel notes that the appeal was not served on Mr Giles-Pain and Mr Prentice in time, nor has it been served on either Barfoot & Thompson as the remaining respondent on the original appeal, or the District Court at Auckland, let alone on the Crown who is also identified as a “Defendant Principal Respondent at Large”.

[3]                 Service issues aside, even more fundamentally Ms Steel has noted that the underlying appeal Judge Harrison issued directions in respect of has in fact been determined. In particular, Ms Steel has confirmed the underlying appeal went to hearing at the District Court on 14 January 2020. As Ms McLeod did not appear it was struck out and has not been appealed, with costs subsequently awarded in favour of Barfoot & Thompson. This effectively makes the present appeal to this Court moot given that there can be no jurisdiction to either reinstate Mr Giles-Pain and Mr Prentice to the underlying appeal or otherwise revisit the question of security. In those circumstances I accept Ms Steel’s submission that there can be no basis for the present appeal to continue. The matters determined by Judge Harrison in his Minute of 18 December 2019 have no independent existence once the underlying appeal has been dismissed leaving this Court with no jurisdiction to either reinstate Mr Giles-Pain and Mr Prentice or to revisit security. As a result the present appeal must be and is dismissed.

[4]                 Ms Steel has sought costs on the dismissal of the appeal. Although these are opposed by Ms McLeod I am satisfied that this is a case where costs are appropriate given it was necessary for Mr Giles-Pain and Mr Prentice to take steps to protect their

position, noting also that the underlying issues have previously come before this Court when Ms McLeod has previously attempted to join Mr Giles-Pain and Mr Prentice as the owners of the property when in fact it is owned by a company, Giles-Pain Properties Limited.

[5]                 In the circumstances, I am satisfied that costs are appropriate for the filing of a memorandum for this first case management conference together with Ms Steel’s appearance at the conference. This comes to a total of 0.7 days on a 2B basis, a sum of $1,673.00 which I direct is to be paid by Ms McLeod in favour of Mr Giles-Pain and Mr Prentice.

Powell J