Riccarton Construction Ltd v Coljon Ltd - [2010] NZCA 430

IN THE COURT OF APPEAL OF NEW ZEALAND
CA124/2010
[2010] NZCA 430
BETWEENRICCARTON CONSTRUCTION LIMITED

Appellant

ANDCOLJON LIMITED

Respondent

Hearing:14 September 2010

Court:Glazebrook, Hammond and Ellen France JJ
Counsel:R P Harley for Appellant

S W Rollo for Respondent

Judgment:21 September 2010 at 11 am

JUDGMENT OF THE COURT

A The application by the respondent to strike out the appeal is granted.
BThe respondent will have costs as on a standard application for leave to appeal, that being the nearest analogy in the rules, Band A, and usual disbursements.

REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1] This is an application by the respondent, Coljon Ltd (Coljon), to strike out this appeal on the basis that the appellant, Riccarton Construction Ltd (Riccarton), has failed to pay security for costs.
[2] The application is made in reliance on r 37(1) of the Court of Appeal (Civil) Rules 2005 (the Rules). Rule 37(1) provides:
Consequences of failure to comply with requirement to pay security for costs
(1)The Court may, on application, make an order striking out an appeal if security for costs is not paid by the time payment is due.
...

[3]        Security for costs is due within 20 working days of the notice of appeal being filed.[1] The Notice of Appeal was filed on 11 March 2010 (it is incorrectly dated 11 March 2009). As is standard practice, a letter was sent on 12 March by the Registry case officer to the parties acknowledging receipt of the Notice of Appeal, and, inter alia, bringing to the appellant’s attention r 35 regarding security for costs.
[1]      Rule 35(3).
[4]        There was then an application under r 35(6) by the respondent to the Registrar to increase security for costs on the grounds that the appellant was, it claimed, insolvent and had not satisfied the costs awarded in the High Court despite demand being made. The appellant failed to respond to the application. On 30 April the Registrar granted the application and increased security for costs, noting that the purpose of security is to protect the respondent in the event of an unsuccessful appeal, and gave the appellant a further 20 working days from that date to pay security. That period expired on 28 May without payment being made.
[5]        On 22 June, this Court received an application by the appellant to defer payment for security for costs. It was out of time. The Acting Registrar conferred with the President and then by letter dated 3 August informed the parties that:
At this time I am not inclined [to] grant an extension of time to the 20 working day period. The issue is to be before the Court for consideration on 14 September 2010. Unless further directed by the Court, a decision will not be made on the deferral application at this time.

In other words, it was considered appropriate to get on with the merits of the strike-out application, rather than have further unnecessary procedural complications.
[6] This attenuated history demonstrates…

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.

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Details

Case: [2010] NZCA 430
Decision Date: 21 September 2010

CaseChat Overview and Summary

Riccarton Construction Ltd appealed against a decision by Coljon Ltd to strike out the appeal on the basis that Riccarton had failed to pay security for costs. The appeal was dismissed. The appeal was against a decision of the High Court dismissing an application to set aside a statutory demand. The appeal arose out of Riccarton’s failure to pay a deposit of $300,000 under a contract with Coljon Ltd to buy a Christchurch motor lodge. The deposit was due on 21 August 2009 and time was of the essence. Riccarton failed to pay the deposit at all. On 1 September 2009, Coljon sent a letter of demand to Riccarton. On 11 September, Coljon issued a statutory demand on Riccarton for $300,320. Riccarton applied for an order setting aside the demand on the grounds that interest on the deposit amount was the only remedy available for such a default; that there was a substantial dispute that the debt was owing and due; that Coljon had repudiated the agreement by purporting to cancel it; and that Riccarton would suffer hardship and injustice if the demand was not set aside. The Associate Judge dismissed the application. The appeal was against a decision of the High Court declining Riccarton judicial review of a decision of the Commissioner of Inland Revenue. One ground of opposition to the application for strike-out is that an injustice would result because Riccarton would not then be able to continue its proceedings against the Commissioner. The appeal was dismissed. The proposed grounds of appeal were without any merit whatsoever.

Orders