Prasad v Indiana Publications (NZ) Limited

[2012] NZCA 211

IN THE COURT OF APPEAL OF NEW ZEALAND

CA184/2012
[2012] NZCA 211

BETWEEN  RAJENDRA PRASAD
Appellant

AND  INDIANA PUBLICATIONS (NZ) LIMITED & ORS
Respondents

Hearing:         On the papers

Judgment:      25 May 2012 at 3 pm

JUDGMENT OF WILD J

The application for review of the Acting Registrar’s decision refusing to dispense with security for costs is dismissed.

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REASONS

1. This appeal was filed on 26 March 2012.  Security for costs was fixed at $16,680, reflecting the fact that Mr Prasad has named 35 respondents to the appeal. 

2. By application filed on 24 April Mr Prasad applied to the Registrar to dispense with security, pursuant to r 35(6)(c).

3. That application was opposed by counsel for the first to third respondents, in a memorandum he filed on 30 April.  Amongst the points made in that memorandum were:

   (a)        Mr Prasad is an undischarged bankrupt who lacks standing to bring this appeal.  The Official Assignee has disowned the appeal and advised that any costs awarded against Mr Prasad on the appeal will not be recoverable as debts of the bankrupt’s estate.

   (b)       There are 20 nominated respondents to the appeal (in fact, there are 35 – it seems counsel is missing the last page of the intitulement).

   (c)        The amount for which Mr Prasad was bankrupted exceeds $70,000, which comprises entirely costs awarded against him in respect of unsuccessful Court proceedings he has brought.  It can therefore be inferred that he will not pay any costs awarded against him in respect of this appeal.

4. In a decision dated 7 May 2007 the Acting Registrar, Mr Thatcher, declined Mr Prasad’s application to dispense with security.  Briefly, his reasons were:

   (a)        The appeal did not involve any question of significant interest to the public, but rather involved facts relating only to Mr Prasad.

   (b)       Mr Prasad had not supplied any details in support of his assertion that he was impecunious save for the fact that he was an undischarged bankrupt.

5. By memorandum dated 18 May, but received by the Court on 23 May, Mr Prasad applies for a review of the Registrar’s decision declining to dispense with security.  Rule 7(2) entitles him to do that.

6. In paragraph CR35.03, McGechan on Procedure assembles the following list of considerations relevant when considering whether or not security for costs should be dispensed with:

   (a)        The circumstances of the appeal:  the appellant must genuinely intend to pursue it and it must be arguable.

   (b)       The significance of matters raised in the appeal, including any public interest in having those issues determined.

   (c)        The merits of the appeal – whether it appears “to have any real legs”.

   (d)       Whether the appellant’s appeal rights will be rendered nugatory if security is not dispensed with.

   (e)        Impecuniosity, although this is not itself a ground for dispensing with or reducing security.

7. I deal with each of these in turn.  As to (a), I accept that Mr Prasad genuinely intends to pursue this appeal.  For the reasons set out in my Minute (No 2) issued today, and in my earlier Minute of 18 April, I do not accept that the appeal is arguable.  In the first of those minutes I laboured, seemingly unsuccessfully, to point out to Mr Prasad that the appeal will not – because it cannot – achieve his aim of setting aside his bankruptcy.  For that reason I expressed the view that the appeal was pointless and meritless.  For what it is worth, I have reiterated that in my Minute (No 2) of today. 

8. As to (b), I agree with the Registrar’s decision.  This appeal is of no public or general interest.  It relates to some of a series of unsuccessful attempts by Mr Prasad to challenge his bankruptcy.

9. As to (c), I reiterate my view that the appeal is meritless.

10. As to (d), I am prepared to accept that insisting on security for costs will render Mr Prasad’s appeal rights nugatory.  But that consideration needs to be balanced against my view that those appeal rights are meritless.

11. As to (e), I agree with the Registrar’s decision.  It is common ground that Mr Prasad is an undischarged bankrupt but, beyond that, he has not put before the Registrar any evidence that he is unable to pay security.  I should add that the amount of that security is simply a function of the number of respondents Mr Prasad has joined to his appeal.

12. Having reviewed the Acting Registrar’s decision, I uphold it.

13. The consequences of Mr Prasad not now complying with the requirement that he pay security for costs are spelt out in r 37.