Oraka Technologies Ltd v Geostel Vision Ltd - [2009] NZCA 411

IN THE COURT OF APPEAL OF NEW ZEALAND
CA145/2009
[2009] NZCA 411
BETWEENORAKA TECHNOLOGIES LIMITED

First Appellant
ANDORAKA GRADERS LIMITED

Second Appellant
ANDMICHAEL WILLIAM SCHWARZ

Third Appellant

ANDGEOSTEL VISION LIMITED

First Respondent
ANDPAUL DAYNES AND GORDON ROBERTSON

Second Respondents
ANDNAPIER TOOL & DIE CO LIMITED

Third Respondent

Hearing:15 September 2009

Court:William Young P, O'Regan and Arnold JJ
Counsel:B P Henry for Appellants

K J Crossland for Respondents

Judgment:15 September 2009

ORAL JUDGMENT OF THE COURT

A The strike out application is dismissed.
BThe respondents are to pay costs on a standard band A basis along with usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
[1]       This is an application to strike out an appeal on the ground that security for costs was not provided in a timely way.
[2]       The appeal is against a judgment delivered on 18 February this year in which Allan J dismissed proceedings brought by the current appellants, Oraka Technologies Ltd, Oraka Graders Ltd and Mr M W Schwarz (the “Oraka parties”) against Geostal Vision Ltd and others alleging infringement of copyright and breach of fiduciary duty.
[3]       Under r 35 of the Court of Appeal (Civil) Rules 2005, an appellant must provide security for costs within 20 working days after the notice of appeal has been filed. It is open to the Registrar to dispense with security providing an application to that effect is made within the same time period, that is 20 working days (see r 35(6) and (7)). In this case, that period expired on 15 April. By reason of a miscalculation of dates, the Oraka parties applied one day late, on 16 April, for an order dispensing with security. In the end, the Registrar declined the application, both by reason of the time point and on the merits and the appellants then provided security for costs and, a few days later, paid the setting down fee. After security for costs had been paid, the respondents applied for an order striking out the appeal, a course which is provided for under r 37(1).
[4]       To put this in perspective, the dispensation was applied for one day late, the dispensation was refused on 18 May and security was provided on 11 June, some 43 days late.
[5]       In the ordinary course of events, a one day default in seeking a dispensation from the requirement to meet security followed by reasonably prompt payment once dispensation was declined would not justify striking out an appeal. This is despite the reality, much stressed by Mr Crossland, that the rules do not stipulate that time for providing security stops running while a dispensation application is under consideration.
[6]       There are grounds for concern as to the ability of the appellants to meet costs over and above the security which has been provided. The respondents are particularly troubled by the apparent contradiction between payment of security and the setting down fee on the one hand and, on the other, what has been said on behalf…

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.

Keep reading for free

Create a free CaseChat account to read Oraka Technologies Ltd v Geostel Vision Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NZCA 411
Decision Date: 15 September 2009

CaseChat Overview and Summary

Oraka Technologies Limited, Oraka Graders Limited, and Michael William Schwarz (the "Oraka Parties") appealed against a High Court judgment dismissing their proceedings against Geostel Vision Limited, Paul Daynes, Gordon Robertson, and Napier Tool & Die Co Limited. The appellants alleged copyright infringement and breach of fiduciary duty. The appeal was struck out by the respondents on the basis that the Oraka Parties had failed to provide security for costs within the required timeframe. The appeal against this decision was heard by the Court of Appeal of New Zealand, consisting of William Young P, O'Regan, and Arnold JJ. The legal issues included whether the late application for dispensation from providing security for costs justified striking out the appeal and whether the appeal had sufficient merit to proceed.

The Court found that while the Oraka Parties had applied for dispensation one day late and had provided security for costs 43 days late, these factors alone did not justify striking out the appeal. The primary obligation to provide security for costs had been met, and the respondents were not entitled to require the Oraka Parties to disclose their funding. The Court also considered the merits of the appeal and found that it was not hopeless. The appeal was therefore not struck out, and the respondents were ordered to pay costs on a standard band A basis along with usual disbursements.

Orders