McNaughton v Miller

[2022] NZHC 232

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2021-435-01

[2022] NZHC 232

BETWEEN

RICHARD MCNAUGHTON

Plaintiff

AND

RODNEY MILLER

First Defendant

AARON SLIGHT
Second Defendant (Discontinued)

RIGG ZSCHOKKE LIMITED
Third Defendant (Discontinued)

GARY KAYE
Fourth Defendant

TAVERNER KEYS & CO

Fifth Defendant

Hearing:

On the papers

Appearances:

Plaintiff in person

D Bleier for first defendant

V Wethey for fourth defendant J Forrest for fifth defendant

Judgment:

18 February 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]                  In my judgment of 8 October 2021 I made an order for security for costs in favour of the remaining defendants — the first, fourth and fifth defendants — against the plaintiff, and stayed the plaintiff’s proceeding pending the provision of security. The security ordered was in the form of a mortgage over a property registered in the

MCNAUGHTON v MILLER [2022] NZHC 232 [18 February 2022]

name of the plaintiff’s parents, in which, the plaintiff informed the Court, he had a substantial equitable interest, the value of which exceeded the amount already secured over the property by a sufficient margin to cover the amount of security for costs sought against him.

[2]Costs were reserved.

[3]                  On 3 November 2021 the plaintiff filed an interlocutory application for leave to appeal to the Court of Appeal from my judgment together with a lengthy affidavit. The application is opposed by the remaining defendants who have filed notices of opposition supported by memoranda.

[4]                  The matter was not referred to me until 20 December 2021, that is to say the last sitting day of the year. At that stage, the only issue seemed to be whether it was necessary to have a hearing in order to determine the plaintiff’s leave application, or whether it could be dealt with on the papers. I issued a minute on 25 January 2022 enquiring whether the plaintiff or any of the defendants were seeking a hearing. The Registrar confirms that no party has done so.

[5]I therefore proceed to deal with the application on the papers.

[6]                  The plaintiff requires leave to appeal because s 56(3) of the Senior Courts Act 2016 so provides in relation to proposed appeals from interlocutory judgments. The principles that apply to such applications are well settled:

(a)Reasons should be expressed in general terms and be brief;

(b)The requirement of leave is intended to operate as a filtering mechanism intended to ensure that only appeals on significant matters are allowed — the process is intended to weed out appeals that are trivial or unmeritorious, or merely tactical;1

1      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13] affirmed in Fairway Holdings Ltd v McCullagh [2008] NZCA 605 at [11].

(c)The threshold for leave is high and intended to reduce the number of interlocutory appeals;2

(d)The proposed grounds of appeal should raise matters “of general or public importance” or of sufficient importance to the parties to outweigh the lack of general or public importance;3

(e)Accordingly, applications for leave involve balancing the substantive merits of the proposed appeal on the one hand against the inevitable delay in the resolution of the litigation that will result from an appeal on the other;

(f)The ultimate question is whether, standing back and assessing matters “in a pragmatic and realistic way”, the interests of justice is served by granting leave to appeal.4

[7]                  The curiosity in this case is that the order I made, as described above, is effectively an order that the plaintiff invited the Court to make. At the hearing of the application for security for costs, whilst the plaintiff asked the Court to consider whether the amount being sought by the defendants was reasonable, he offered no alternative analysis, instead focussing almost exclusively on the nature of security to be provided. As I understood Mr McNaughton his contention was that if the Court were to make an order that required him to pay security for costs in cash, that would effectively prevent him proceeding, and it was against that background that he actively offered security in the form of a charge over the property registered in his parents’ name.

[8]                  In those circumstances, this does not seem to me to be a case in which it would be appropriate for the Court to grant leave to Mr McNaughton to appeal.

2      Finewood Upholstery Ltd v Vaughan, above n 1 at [9](a); and Ngai Te Hapū Inc v Bay of Plenty Regional Council [2018] NZCA 29 at [15].

3      Insert reference.

4      Above n 1.

[9]                  In my view, the prospect of any appeal being successful in this case on the basis of the information before the Court is not good. Given that the plaintiff invited the Court to make an order more or less in the terms that it did, any appeal would appear to lack any real merit, but might even be categorised as trivial.

[10]              Standing back from the matter as best I can, it does not seem to me that the interests of justice would be served by granting leave to appeal.

[11]              If the position is that, contrary to what the plaintiff confidently told the Court at the time, his parents are not prepared to consent to their property being used as security as ordered, then of course it is open to the plaintiff to apply for a variation of the order enabling him to provide security of a different nature. If that is the position, then a first step may be for him to approach the solicitors, or even counsel, acting for the defendant parties and propose an alternative form of security.

[12]              In any event, I am not satisfied that this is a case that meets the high threshold and I refuse leave to appeal accordingly.

[13]Costs are reserved.

Associate Judge Johnston

Solicitors:

Gawith Burridge, Masterton for first defendant Fee Langstone, Auckland for fourth defendant Janey Forrest, Wellington for fifth defendant