O'Leary v GE Custodians Limited

[2010] NZCA 470

IN THE COURT OF APPEAL OF NEW ZEALAND

CA436/2010
[2010] NZCA 470

BETWEENDEAN ANDRE O'LEARY

Applicant

ANDGE CUSTODIANS LIMITED

Respondent

Counsel:Appellant in person

E Cox for Respondent

Judgment:18 October 2010 at 10 am 

JUDGMENT OF ARNOLD J

Time for filing the application for review of the Acting Registrar’s decision as to security for costs is extended but the application is declined.  Security for costs in the amount of $2,780 must be paid within 20 working days of the date of this judgment.

REASONS

Introduction

[1]         The applicant, Mr O’Leary, filed an appeal and applied for a dispensation from the requirement to pay security for costs.  The Acting Registrar declined to waive security but reduced the amount payable to $2,780.  This is an application for review of that decision. 

Background

[2]        Mr O’Leary took out a mortgage with GE Custodians Ltd and subsequently defaulted on the repayments.  GE Custodians applied to the High Court for vacant possession of the mortgaged property.  Mr O’Leary indicated to the Court that he wished to defend the proceeding and requested more time to prepare his defence.  Associate Judge Bell issued a Minute on 1 June 2010 directing Mr O’Leary to file any documents by 14 June 2010 and calling for a telephone conference on 15 June 2010. The Minute indicated that the summary judgment application could be heard on 20 or 21 July 2010. 

[3]        On 15 June 2010 the telephone conference was held.  Mr O’Leary had not filed any documents. He said he received the email from the Court but did not open the attachment containing the Associate Judge’s Minute.  The Associate Judge noted that it was Mr O’Leary’s responsibility to read the Minute and that he must accept the consequences of not doing so.  Mr O’Leary accepted that he was in default under the mortgage and had no good grounds for opposing GE Custodians’ application, but said that he had other matters in issue with GE Custodians.  In these circumstances, the Associate Judge considered that there was no reason not to grant GE Custodians’ application for summary judgment and ruled accordingly. 

[4]        Mr O’Leary then filed a notice of appeal in this Court against that ruling.  The filing fee of $900 was waived, Mr O’Leary being in receipt of an unemployment benefit.[1]  Security for costs was set at $5,560 on 15 July 2010. 

[1]See Court of Appeal Fees Regulations 2001, reg 5(3).

[5]        On 4 August 2010 Mr O’Leary applied for a dispensation from the requirement to pay security for costs and the setting down fee of $2,200 on the ground that he was impecunious.  He included with his application a letter from Work and Income which showed he receives the unemployment benefit and an accommodation supplement. GE Custodians opposed the application on the ground that impecuniosity was an insufficient reason to waive security.

[6]        On 12 August 2010 the Acting Registrar responded to Mr O’Leary’s application.  In relation to the application for waiver of security for costs, the Acting Registrar noted that while impecuniosity alone could not justify dispensation, it could lead to a reduction in security if in the interests of justice to do so.  She noted that the appeal did not appear to be arguable or in the public interest and so waiver was declined.  However, in recognition of Mr O’Leary’s financial circumstances, security was reduced by 50 per cent to $2,780.  

[7]        On 22 September Mr O’Leary applied for a review of the Acting Registrar’s decision.  This application was required to be made within ten days of the decision[2] and so was 19 days out of time. 

Discussion

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

[8]        In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[3]  If an appellant wishes to apply to the Registrar for a waiver of security, he or she must do so within 20 days of filing the appeal.[4] The Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[5]

[3]Rule 35(2).

[4]Rule 35(3) and (6).

[5]Rule 35(6).

[9]        Security for costs will be waived where it is in the interests of justice to do so.  There must be some exceptional circumstance to justify waiver.[6]  The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security.  The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.[7]  Impecuniousity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.[8]

[6]Fava v Zaghloul [2007] NZCA 498 at [9].

[7]Creser v Official Assignee CA196/05, 12 June 2006 at [29].

[8]Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].

[10]       While Mr O’Leary’s application for review of the Acting Registrar’s decision was out of time, a Judge may extend time limits if it is just to do so.[9]  Mr O’Leary says he did not receive the letter advising of the Acting Registrar’s decision until 18 September 2010, after which time there was some miscommunication regarding the departure of his case manager.  As the delay was not lengthy and appears to have been unintentional, I grant an extension of time for the filing of the review application.

[9]Rules 5(2) and 7.

[11]       Mr O’Leary’s position is that he is unable to meet the reduced amount of security due to his financial circumstances. However, that will often be the situation where a mortgagor has failed to meet mortgage payments.  In general, there must be some exceptional circumstance to justify the grant of a waiver.

[12]       I consider that the Acting Registrar was right to refuse to dispense with security all together.  First, the appeal does not appear to have any prospects of success.  The notice of appeal does not raise any specific point of law.  The ruling of Associate Judge Bell was inevitable in light of Mr O’Leary’s admissions in the telephone conference.

[13]        Second, while Mr O’Leary considers that he has some outstanding issues with GE Custodians, he has not identified them.  It seems that they are not associated with this property or the application for summary judgment.  Accordingly, they do not appear to be relevant to the subject matter of the appeal.   Accordingly, Mr O’Leary’s ability to seek a resolution of those issues will not be affected if he is unable to pursue the present appeal because he cannot provide security.  Third, Mr O’Leary has not suggested that there is any public interest in the appeal, and none seems evident.

[14]       There is nothing exceptional which would warrant a waiver of the usual requirement to provide security.  The amount required has already been reduced by 50 per cent, and given that the appeal does not seem arguable, GE Custodians is entitled to some protection for the costs it will occur in defending its judgment.  I consider that the Acting Registrar was right to decline to waive security. 

Decision

[15]       Time for filing the application for review of the Registrar’s decision as to security for costs is extended but the application is declined.  Security for costs of $2,780 must be paid into Court within 20 working days of the date of this judgment.  There is no order for costs on this application.

Solicitors:

Gibson Sheat, Lower Hutt for Respondent