Rabson v Shepherd - [2016] NZCA 283

IN THE COURT OF APPEAL OF NEW ZEALAND

CA51/2016
[2016] NZCA 283

BETWEEN	MALCOLM EDWARD RABSON AND RICHARD JOHN CRESER AS TRUSTEES OF THE MALCOLM RABSON FAMILY TRUST Appellants
AND	IAN BRUCE SHEPHERD AND CHRISTINE MARGARET DUNPHY Respondents

Counsel:

Appellant R J Creser in person
H L Thompson for Respondents

Judgment:

(On the papers)

23 June 2016 at 2.30 pm

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JUDGMENT OF WILD J: REVIEW OF REGISTRAR’S DECISION

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The Deputy Registrar’s decision declining to dispense with security for the costs of this appeal is upheld.

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REASONS

By application filed on 14 April 2016, the appellant Mr Creser applies under r 7(2) of the Court of Appeal (Civil) Rules 2005 for review of the Deputy Registrar’s decision declining his application to dispense with security for the costs of this appeal. The decision is that of Deputy Registrar Ms Jacey McGrath, given on 6 April 2016.[1] It is a carefully reasoned decision.
[1]Rabson v Shepherd CA51/2016, Decision of Deputy Registrar McGrath on Security for Costs, 6 April 2016 [Deputy Registrar’s decision].
There is an initial question as to whether Mr Creser had standing to apply in his personal capacity to dispense with security, which is what he did. In her decision, Deputy Registrar McGrath noted this question about standing but assumed, for the purposes of her decision, that Mr Creser had the requisite standing.
I also raised the question of standing in minutes I issued in respect of this appeal on 6 May and 16 May 2016.[2] In the first of those minutes I stated:
[4] However, one thing is clear: Mr Creser does not have standing to appeal to this Court in his capacity as a trustee of the Malcolm Rabson Family Trust because he is not one. And that is the capacity in which he has purported to appeal.
[2]Rabson v Shepherd CA51/2016, 6 May 2016 (Minute of Wild J); Rabson v Shepherd CA51/2016, 16 May 2016 [Minute (No 2) of Wild J].
In my second minute, dated 16 May 2016, I said:
[4] If Mr Creser does wish to appeal to this Court in his personal capacity, then he will need to apply to be joined as a second appellant to the trustees’ appeal. I am not prepared to review the Deputy Registrar’s decision on Mr Creser’s application to dispense with security for the costs of an appeal brought in his personal capacity, when he has no such appeal before this Court. And there can be no doubt that Mr Creser “… seeks to proceed in [his] personal capacity in order to overturn the costs award and not the decision itself”. That is what Mr Creser stated to Deputy Registrar McGrath in the passage she quotes in [9] of her decision. The capacity in which Mr Creser seeks to appeal, and the scope of his appeal, are both directly relevant to the decision on security for the costs of the appeal, as Mr Creser has recognised in his correspondence with Deputy Registrar McGrath.
In…

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 Rabson v Shepherd

Details

AGLC: Rabson v Shepherd [2016] NZCA 283
Case: [2016] NZCA 283
Decision Date: 23 June 2016 at 2.30 pm

CaseChat Overview and Summary

In the case of Rabson v Shepherd, the appellant, Malcolm Edward Rabson, and Richard John Creser as trustees of the Malcolm Rabson Family Trust, appealed against a decision by the Deputy Registrar declining to dispense with security for the costs of the appeal. The respondents, Ian Bruce Shepherd and Christine Margaret Dunphy, were the original respondents in the underlying proceeding. The appeal was heard by Wild J, who upheld the Deputy Registrar’s decision. The legal issue before the court was whether the Deputy Registrar was correct in declining to dispense with security for the costs of the appeal. The court considered this issue in light of the principles laid down in Reekie v Attorney-General, and determined that the Deputy Registrar was correct in her decision. The Deputy Registrar had identified the relevant principles and applied them correctly, considering factors such as the merits of the appeal, the potential benefits and costs of the appeal, and the public interest. The court found that the Deputy Registrar’s decision was well-reasoned and upheld it. As a result, the appellants were required to provide security for the costs of the appeal in the sum of $6,600 by a specified date. If security was provided, the court directed that Mr Creser be added as a second appellant and that further documents filed be intituled accordingly.

Orders