AThe appeal is struck out for failure to pay security for costs.
B The appellant must pay the respondent’s costs for a standard application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Miller J)

Introduction

Mr Moodie has appealed against a decision of Associate Judge Osborne dismissing his application to set aside a bankruptcy notice.[1] The appeal was entered on the fast track and given a fixture on 1 July 2014.
[1]Strachan v Moodie [2013] NZHC 3312 [High Court decision].
The rules of this Court required that Mr Moodie pay security for costs within 20 working days after filing his appeal on 20 December last.[2] He asked the Registrar to defer payment until 25 April 2014 on grounds of ill health, but without adequate evidence of his financial position. The Registrar declined. On review Harrison J directed that he pay the prescribed sum by 31 March 2014.[3] That decision was not appealed. He still has not paid.
[2]Court of Appeal (Civil) Rules 2005, r 35 [Civil Rules].
[3]Moodie v Strachan CA871/2013, 19 March 2013 (Minute of Harrison J) at [5].
This judgment responds to Ms Strachan’s application for an order striking the appeal out.[4] By consent, the application has been dealt with on the papers.

Background

[4]Civil Rules, r 37.

Mr Moodie and Ms Strachan are both lawyers. Mr Moodie employed Ms Strachan early in 2005, and late in 2007 he constructively dismissed her. She successfully challenged her dismissal in the Employment Court, resulting in a judgment debt of $222,239.18 payable by Mr Moodie together with judgment interest.[5]
[5]Strachan v Moodie [2012] NZEmpC 95, (2012) 10 NZELR 216.
Mr Moodie failed to pay and Ms Strachan issued a bankruptcy notice. Mr Moodie applied to set the notice aside, relaying on an equitable cross-claim which takes the form of an action in defamation. He alleges that Ms Strachan made defamatory comments to one person, the features editor of the New Zealand Listener.[6] The comments were not further published. The damages sought, $325,000, exceed the judgment debt.

The law

[6]This claim has its origins in defamation proceedings against Ms Strachan, another barrister, and the publisher of the New Zealand Listener. The proceedings were settled in September 2009 but the single cause of action described, solely against Ms Strachan, remained.

The Court may, on application, make an order striking out an appeal if security is not paid by the time payment is due.[7]
[7]Civil Rules, r 37.
In the ordinary course an appellant who has not paid security will not be able to apply for a fixture, which must be done within three months after filing, and the appeal will…

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 Moodie v Strachan

Details

AGLC: Moodie v Strachan [2014] NZCA 260
Case: [2014] NZCA 260
Decision Date: 23 June 2014 at 10.00 am

CaseChat Overview and Summary

In the case of Moodie v Strachan, the appellant, Robert Alexander Moodie, sought to appeal a decision of the High Court dismissing his application to set aside a bankruptcy notice. The appeal was heard by the Court of Appeal of New Zealand, presided over by Miller, R Young, and S France JJ. The legal issue before the court was whether to strike out the appeal due to the appellant's failure to pay the required security for costs within the stipulated timeframe. The appellant had applied to defer the payment of security for costs on the basis of ill health but did not provide adequate evidence of his financial position, and his subsequent application for dispensation was declined.

The court noted that the appellant had not shown any change in circumstances that would justify the refusal of the strike-out application. The appellant had not demonstrated that his illness still precluded payment or provided evidence of his financial position, and there was no intention to pay the security or seek further time to do so. Furthermore, the appellant had defaulted in filing the case on appeal and the fixture was now imminent. The court considered the appeal to be hopeless as it rested on the proposition that the appellant had an equitable set-off equaling or exceeding a judgment debt that he had admittedly not paid. The court concluded that there was no realistic prospect that the appellant might win an award exceeding the judgment debt and interest.

As a result, the court granted the respondent's application to strike out the appeal. The appellant was ordered to pay the respondent's costs for a standard application on a band A basis and usual disbursements. This case highlights the importance of timely payment of security for costs and the consequences of failing to do so, including the potential for an appeal to be struck out.

Orders