McMahon v The Royal New Zealand Foundation of the Blind Incorporated

[2021] NZHC 648

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV 2020-488-112

[2021] NZHC 648

UNDER

Section 119 of the Residential Tenacies Act 1986

IN THE MATTER OF

The Judgments of the District Court at Whangarei dated 14 October 2020 and 30

November 2020

BETWEEN

ANGELINE CLARK McMAHON

Appellant

AND

THE ROYAL NEW ZEALAND FOUNDATION OF THE BLIND INCORPORATED

Respondent

Teleconference:	29 March 2021
Counsel:	G W Thwaite for the Appellant N Hartwell for the Respondent
Judgment:	29 March 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 29 March 2021 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

McMAHON v THE ROYAL NEW ZEALAND FOUNDATION OF THE BLIND INCORPORATED [2021] NZHC 648 [29 March 2021]

[1]        The appellant, Ms McMahon, applies for an order that she is not required to pay security for costs on her appeal.

[2]        To give context to Ms McMahon’s application, I first set out the background to Ms McMahon’s appeal. I then note an interlocutory application that the respondent has brought in this appeal.

Background to Ms McMahon’s appeal

[3]        Ms McMahon occupied a dwelling at 145 Tavinor Road, Otaika, Whangārei. The dwelling was owned by a Mr Rowles. Ms McMahon originally paid rent, but stopped payment in October 2016.

[4]        Mr Rowles died in February 2017. His unsigned will left his entire estate to the New Zealand Guide Dogs for the Blind Association. On 23 October 2018 the High Court made an order declaring Mr Rowles’ unsigned will a valid will. No executor was named in the will. On 24 January 2019 the respondent, the Royal New Zealand Foundation of the Blind (the Foundation), was granted letters of administration.

[5]        Ms McMahon remained in occupation of the dwelling without paying any rent to the Foundation. On 5 July 2019 the Foundation instructed Henderson Reeves, solicitors, to terminate Ms McMahon’s tenancy. On 23 July 2019 notice was given to her to terminate by 31 October 2019. Ms McMahon refused to vacate.

[6]        On 14 November 2019 Henderson Reeves, as agent for the Foundation, filed an application in the Tenancy Tribunal for an order for possession.

[7]        In a decision of the Tenancy Tribunal dated 16 March 2020, the Adjudicator, Mr Blake, made orders granting possession of the premises to Henderson Reeves.

[8]        Ms McMahon did not appeal the Adjudicator’s decision. But, four months later, on 13 July 2020, Ms McMahon applied to the Tenancy Tribunal for a rehearing, an extension of time for filing the application (which should ordinarily have been filed within five working days), and a stay of the enforcement order.

[9]        The application for a rehearing was heard in September 2020 by Mr Blake. Mr Blake dismissed Ms McMahon’s application.

[10]      Ms McMahon appealed to the District Court against that decision. Ms McMahon’s appeal was heard by Judge D J McDonald. The Judge noted that the Tribunal’s power to order a rehearing arises under s 105 of the Residential Tenancies Act 1986. This says that the Tribunal has the power to order a rehearing on the ground that “a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur”. The Judge said, correctly, that s 105 sets a high standard. The Judge found that it was not met. He dismissed Ms McMahon’s appeal.

[11]      It is Judge McDonald’s decision from which Ms McMahon appeals. She is, therefore, appealing against a decision dismissing her appeal from Mr Blake’s refusal of her application for a rehearing. Under s 119 of the Residential Tenancies Act, her appeal is confined to questions of law.

The Foundation applies for an order under s 166 Senior Courts Act 2016

[12]      The Foundation has, in this appeal, applied for an order under s 166 of the Senior Courts Act 2016 restricting Ms McMahon from commencing or continuing civil proceedings on matters relating to the property at 145 Tavinor Road, or relating to the estate of Mr Rowles. At the first case management conference for this appeal, Brewer J noted that the application was brought on the basis that Ms McMahon is a vexatious litigant. His Honour directed that the application be determined in the same hearing as the appeal.

[13]      The hearing of Ms McMahon’s appeal, and of the Foundation’s application, is scheduled for 21 April 2021. One day has been allocated.

Waiver of the requirement to pay security for costs

[14]      Appellants are normally required to pay security for costs. Security for costs can be waived where it is in the interests of justice to do so: rule 20.13(2). Exceptional circumstances are needed to justify waiver.1

[15]      Ms McMahon filed three documents in support of her application. One was an unsworn affidavit dated 25 March 2021. The affidavit was unsworn because Ms McMahon had, at short notice, had to leave New Zealand. The body of this affidavit merely said that Ms McMahon was attaching various documents. I have reviewed the documents. Another document was a bundle of documents from what was called the “probate file”, but which in fact was the proceeding in which the Foundation obtained an order validating Mr Rowles’ informal will. The third document was another affidavit by Ms McMahon, this time sworn (in Missouri). This was filed late, but I decided to consider it. There appears to be a reasonable excuse for the delay.

[16]      Mr Thwaite, on behalf of Ms McMahon, submitted that three matters justified a dispensation from the normal requirement to pay security for costs. The first was that, because of the Foundation’s application, the Court was required to assess the full dispute between the parties, “and so Respondent requires the full assessment of the District Court Judgment”. I do not accept this. Ms McMahon’s appeal will, equally (if not more), require an assessment of Judge McDonald’s judgment.

[17]      Mr Thwaite’s second point was that “more likely than not, Respondent’s application will fail, and so Respondent will owe costs to Appellant, which will cancel out any liability of Appellant (even if she loses)”. I do not accept that this is an exceptional circumstance. It is not clear to me that the Foundation’s application is likely to fail. Obviously, on an application for waiver of security (which would normally be raised before, and addressed as part of, the case management conference), I am not going to embark on a detailed assessment of the merits of another application. From the limited information available to me, I cannot say that the Foundation’s application is without merit.

1      R I G v Chief Executive of the Ministry of Social Development [2010] NZCA 370, leave to appeal refused G v Chief Executive of the Ministry of Social Development [2010] NZSC 141.

[18]      The third and final point made by Mr Thwaite was that the public interest required that the action and inaction of Henderson Reeves and the Foundation be examined and adjudicated upon in this appeal. He submitted that this was a “unique situation”, as the litigation flowed directly from the conduct of Henderson Reeves, which is under challenge from Ms McMahon. I do not agree that this is a matter of public interest, let alone an exceptional circumstance justifying waiver of the usual requirement to pay security. It is true that Ms McMahon makes allegations against Henderson Reeves. But allegations against solicitors, including allegations of breach of ethical duties, are hardly unique. (I note, merely for the avoidance of any doubt, that Judge McDonald dealt with the allegations in the decision that Ms McMahon is now appealing.)

[19]      I add that, in pursuing these points, Mr Thwaite referred to another proceeding (either extant or contemplated) in which it appears that Ms McMahon is challenging the grant of the letters of administration. Mr Thwaite said that Ms McMahon’s challenge “is strong”. That separate proceeding has no relevance to whether Ms McMahon should pay security for costs on this appeal.

Amount and timing of security

[20]      The appeal has already been categorised as cost category 2.2 There is a one- day fixture allocated, but the Foundation seeks security based on only half a day, on the basis that the other half is attributable to its application. I fix security in the sum of $1,195.

[21]      The normal rule is that security must be paid no later than ten working days after the case management conference: rule 20.13(4). The case management conference was on 4 February 2021, so the normal rule is unworkable. Given that the appeal is to be heard on 21 April 2021, and given Ms McMahon’s delays in bringing and then pursuing this application, it is not appropriate to allow the full ten working days from the date of this decision for Ms McMahon to pay security. She should pay security to the Registrar no later than 5.00 pm 7 April 2021.

2      Minute of Brewer J 4 February 2021.

Costs

[22]Each party sought costs in the event of success.

[23]      Ms McMahon is to pay costs and disbursements to the Foundation on this application. I allow the following cost items:

(a)Notice of opposition (item 23, band A): 0.6.

(b)Submissions (item 24, band A): 0.3.

(c)Appearance (item 26): 0.25.

[24]The Foundation is also entitled to the filing fee for its notice of opposition.

Result

[25]I decline Ms McMahon’s application for a waiver of security for costs.

[26]      I direct that Ms McMahon pay to the Registrar, no later than 5.00 pm 7 April 2021, security for this appeal in the sum of $1,195.

[27]Ms McMahon is to pay costs and disbursements to the Foundation as set out at

[23] and [24].

Campbell J