Reid v Cottle - [2012] NZCA 70

IN THE COURT OF APPEAL OF NEW ZEALAND

CA363/2011
[2012] NZCA 70

BETWEEN JAMES ROBERT REID
Applicant

AND SUZANNE LYNNE COTTLE
First Respondent

AND COOPER RAPLEY LAWYERS
Second Respondent

Counsel: Applicant in person
P J Reardon for Respondents

Judgment: 6 March 2012 at 4.30 p.m.

JUDGMENT OF ARNOLD J

The application for review of the Acting Registrar’s decision as to security for costs is declined. Security for costs of $5,560.00 must be paid into Court within 20 working days of the date of this judgment.

_______________________________________________________________

REASONS

Introduction

Mr Reid, purportedly as trustee of the Marangairoa Trust (the Trust),[1] filed an appeal in this Court on 14 June 2011 against a decision of Joseph Williams J striking out his claims against the respondents, Ms Cottle and Cooper Rapley Lawyers.[2] The Judge held that the doctrine of res judicata applied, so that the claims were an abuse of process. The struck out proceedings were effectively a sequel to the proceedings discussed in this Court’s decision in Barber v Cottle.[3]
[1]I say “purportedly” because the Companies Office record annexed to Mr Reid’s memorandum of 4 July 2011 does not show Mr Reid as a trustee. Only Mr David Barber is listed.
[2] Reid v Cottle HC Palmerston North CIV-2010-454-582, 17 May 2011.
[3] Barber v Cottle [2010] NZCA 31.
Security for costs on the appeal was set at $5,560. On 29 June 2011 Mr Reid applied for dispensation from the requirement to pay security.[4] The respondents opposed the application. In a letter dated 12 August 2011, the Acting Registrar declined to dispense with security. Mr Reid now applies for a review of that decision.

The Acting Registrar’s Decision

[4] Court of Appeal (Civil) Rules 2005, r 35(6)(c).

In Mr Reid’s application for waiver, he stated that the Trust, while not impecunious, had “limited resources”. The Acting Registrar noted that no financial records had been filed in support of that claim and that the respondents disputed the fact that Mr Reid was a trustee of the Trust. Further, the Acting Registrar rejected Mr Reid’s claim that the appeal raised matters of genuine public interest. She concluded that the provision of security was necessary in order to protect the respondents for costs should the appeal be unsuccessful. Security remained set at $5,560, to be paid into Court within 20 working days.
Mr Reid applied for a review of the Acting Registrar’s decision on 29 August 2011, just outside the 10 working day period provided for in the Court of Appeal (Civil) Rules 2005.[5] Despite that, I propose to consider the application for review on its merits.

Security for Costs - General Principles

[5] Rule 7(3).

In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[6] An appellant may apply to the Registrar for a waiver of security within 20 days of filing the appeal[7] and the Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[8]
[6]Rule 35(2).
[7]Rule 35(3) and…

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 Reid v Cottle

Details

AGLC: Reid v Cottle [2012] NZCA 70
Case: [2012] NZCA 70
Decision Date: 6 March 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, James Robert Reid, as the purported trustee of the Marangairoa Trust, filed an appeal against a decision by Joseph Williams J that struck out his claims against Suzanne Lynne Cottle and Cooper Rapley Lawyers. The appeal arose from proceedings that were considered a sequel to the case of Barber v Cottle. Joseph Williams J found that the doctrine of res judicata applied, leading to the conclusion that the claims were an abuse of process. The Court of Appeal set security for costs at $5,560, which Mr Reid sought to have waived. The Acting Registrar declined the application, leading to Mr Reid's application for a review of that decision.

The central legal issue in this case was whether the Acting Registrar's decision to deny the waiver of security for costs was justified. The Court examined the criteria for waiving security for costs, considering whether there were exceptional circumstances warranting such a waiver. Factors such as the appellant's standing, the financial status of the appellant, the arguability of the appeal, and the public interest in the issues raised were scrutinized. The Court also assessed the likelihood of the appeal's success.

The Court found that the Acting Registrar was correct in refusing to waive the security for costs. Doubts existed regarding Mr Reid's authority to bring the appeal on behalf of the Trust, and there was no evidence of impecuniosity. The appeal did not raise significant public interest issues but rather applied existing legal principles to a specific fact situation. Furthermore, the appeal appeared to have little prospect of success, given the prior findings in the High Court and the limitation issues that might apply to any new claims. Consequently, the Court declined the application for review, upholding the requirement for Mr Reid to pay the security for costs.

The final orders of the Court were that the application for review of the Acting Registrar’s decision as to security for costs was declined. Mr Reid was required to pay the security for costs of $5,560.00 into Court within 20 working days of the judgment date. There was no order for costs on this application.

Orders