Ridge v Parole

[2014] NZCA 277

IN THE COURT OF APPEAL OF NEW ZEALAND

CA165/2014
[2014] NZCA 277

BETWEEN

SALLY ANNE JUDITH RIDGE AND JAIME DILLON RIDGE AS TRUSTEES OF THE SALLY RIDGE FAMILY TRUST
First Appellants

AND

SALLY ANNE JUDITH RIDGE
Second Appellant

AND

ADAM CRAIG PARORE AND AARON LLOYD AS TRUSTEES OF THE PARORE FAMILY TRUST
First Respondents

AND

ADAM CRAIG PARORE
Second Respondent

AND

SMALL BUSINESS ACCOUNTING (NZ) LIMITED
Third Respondent

Counsel:

D W Grove for Appellants
Z G Kennedy and S M Collier for Respondents

Judgment:

(On the papers)

26 June 2014 at 4 pm

JUDGMENT OF WILD J:  REVIEW OF DECISION OF REGISTRAR

ATime to make an application for review of the Registrar’s decision is extended to 12 June 2014 when the applicants’ application for review was filed.

BThe Registrar’s decision of 15 May 2014 confirming security for costs at $5,880 is upheld.

CThe application for an extension of time now to give security is dismissed.

____________________________________________________________________

REASONS

1. By application filed on 12 June, the appellants seek:

   (a)a review of the Registrar’s decision of 15 May declining to dispense with security for the costs of this appeal;

   (b)an extension of time to make that application; and

   (c)failing dispensation, an extension of time for security to be paid.

2. I extend time to consider application (a) because it is best dealt with on its merits.  Although the respondents dispute it, counsel for the appellants says he only received the Registrar’s decision on 11 June.

3. Security was fixed at $5,880 on 28 March 2014, the day this appeal was filed.

4. On 1 May the appellants filed an application which the Registrar interpreted as one seeking to dispense with security for costs.  Counsel for the appellants submits it was actually an application “for waiver of fees”.

5. In her decision of 15 May the Registrar held she had no jurisdiction to accept the 1 May application (to dispense with security) as it had been filed outside the 20 working days allowed.  She accordingly dismissed it and directed that security must be given by 12 June.  The Registrar relied on Orlov v The National Standards Committee No 1.[1]

   [1]Orlov v The National Standards Committee No 1 [2014] NZCA 182.

6. The Registrar’s decision records that an application filed by the appellants on 29 April seeking an extension of time to file an application “to waive payment of the security for costs, setting down and hearing fees” was not accepted because there is no provision for such an application in this Court’s Rules.

7. It is almost three months since this appeal was filed.  The fixture fee has not been paid.  Security for the costs of the appeal has not been given.  Counsel for the appellants asserts the reason is that the appellants do not have the means to pay the fee or give security.  In their memorandum in opposition filed on 20 June, counsel for the respondents take strong issue with the assertion of impecuniosity.  They rightly point out that the appellants have not put before this Court any evidence of impecuniosity.  In any event, they submit – again correctly – that genuine impecuniosity is just one of the factors relevant in considering whether to dispense with security.

8. Another of the relevant factors is the merits of the appeal.  Counsel for the respondents make two points about the merits.  First, the second appellant formally abandoned her only cause of action during the trial in the High Court and cannot pursue an appeal in her personal capacity, as she is purporting to do.  Second, the first appellants’ appeal lacks merit.  Counsel for the respondents refer to Gilbert J’s observations in his substantive and costs judgments that the trustees’ cause of action was “hopeless” and was “always doomed to fail”.[2]

   [2]Ridge v Parore [2014] NZHC 708 at [8].

9. Having reviewed the Registrar’s decision of 15 May, I uphold it.  The Registrar was correct to reject the application to dispense with security for costs because it was out of time:  Orlov.[3]

   [3]Orlov, above n 1.

10. I decline to extend time for the giving of security for costs.  If there was or is any genuine intention to borrow the funds to give security, or any real prospect of borrowing them, I consider that could and should have been done long before now.  I reiterate, almost three months have gone by since this appeal was filed.  Lastly, my tentative view is that this appeal lacks merit.  I am disinclined to make any orders facilitating the appellants in pursuing a meritless appeal.

11. In the result:

    (a)I extend to 12 June 2014 time for the appellants’ application for review.

    (b)Having reviewed the Registrar’s decision of 15 May 2014 confirming security for costs at $5,880, I uphold it.

    (c)I dismiss the application for an extension of time now to give security.

12. Security was to be given by 12 June and has not been paid.  Rule 37 of the Court of Appeal (Civil) Rules 2005 now applies.

Solicitors:
Foy & Halse, Auckland for Appellants
Minter Elllison Rudd Watts, Auckland for Respondents