Sandilands v Signal
[2021] NZHC 182
•16 February 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-434
[2021] NZHC 182
BETWEEN DUNCAN NIMMO SANDILANDS
Plaintiff
AND
JANE SIGNAL
Defendant
Hearing: On the papers Appearances:
Plaintiff in person
A Darroch for defendant
Judgment:
16 February 2021
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
[1] In my judgment dated 10 September 2020 I dealt with the defendant’s application for security for costs. In the result, I ordered that the plaintiff pay such security in the sum of $15,000 and that this proceeding be stayed pending his doing so. I did not deal with costs, having not heard from the parties as to these.
[2]There are now two matters before the Court for determination:
(a)the defendant’s application for a costs order in relation to the interlocutory proceeding; and
(b)the plaintiff’s application for leave to appeal from my earlier judgment.
[3]By consent I am dealing with both of these matters on the papers.
SANDILANDS v SIGNAL [2021] NZHC 182 [16 February 2021]
[4]I record that in doing so I have had regard to:
(a)the plaintiff’s application for leave to appeal (inclusive of submissions) dated 14 October 2020;
(b)Mr Darroch’s memorandum suggesting that that application be dealt with on the papers dated 3 December 2020;
(c)the plaintiff’s memorandum agreeing to the application being dealt with on the papers dated 4 December 2020;
(d)my minute of 8 December 2020 directing this;
(e)the plaintiff’s memorandum dated 9 December 2020 “withdrawing his original application for leave to appeal;
(f)the plaintiff’s amended application (inclusive of submissions) dated 12 December 2020;
(g)Mr Darroch’s submissions in relation to the plaintiff’s application for leave to appeal dated 23 December 2020;
(h)the plaintiff’s submissions in reply dated 4 January 2021;
(i)the plaintiff’s further memorandum dated 15 January 2021.
Costs
[5] Costs are dealt with in pt 14 of the High Court Rules 2016. The principles involved are straightforward. Costs are quintessentially a matter for the Court’s discretion. However, costs generally follow the event, that is to say that the successful party is entitled to a costs award. As to quantum, other than in exceptional circumstances, the quantum of costs is determined by reference to the scales contained in schedules 2 and 3 of the Rules. Rule 14.3 and schedule 2 deal with the
categorisation of cases from “1”–“3” having regard to complexity, and r 14.4 and sch 3 deal with recovery rates (“A”–“C”).
[6] The defendant was successful in securing an order for security for costs. She now seeks costs in connection with that interlocutory step. It is not suggested on her behalf that those costs ought to exceed scale costs.
[7] Insofar as I am able to see, in none of the material filed by the plaintiff does he respond directly to the plaintiff’s costs application. To the extent that it can be inferred that he opposes a costs award, that is no doubt on the basis of his perception that he will be successful in any appeal. However, it is well settled that the commencement of an appeal, and much less an application for leave to appeal, does not operate as a stay.
[8] In those circumstances, I can see no basis for denying the defendant a costs award.
[9] The defendant seeks costs on a 2B basis and that appears to me fairly to reflect the nature of the case.
[10] I have reviewed Mr Darroch’s calculation of costs on a 2B basis and this appears to be in order.
[11] Accordingly, I will make a costs award in the defendant’s favour against the plaintiff in the sum of $11,233 together with disbursements of $1,100.
Leave to appeal
[12] In the case of all interlocutory judgments of this Court, a party wishing to appeal requires the leave of this Court or the Court of Appeal.
[13]Leave is governed by s 56(3) of the Senior Courts Act 2016.
[14] The principles that apply to granting of leave by this Court were described in Finewood Upholstery Ltd v Vaughan,1 which judgment was approved by the Court of Appeal in Greendrake v District Court of New Zealand:2
(a)The applicant must overcome a high threshold;
(b)There must be an arguable error of fact or law;
(c)The alleged error must be of general or public importance, or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)The circumstances must warrant incurring further delay; and
(e)The ultimate question is whether the interests of justice are served by granting leave.
[15] The requirement for leave to appeal should also serve as a “filtering mechanism” to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.3
[16] With those considerations in mind, I turn to the grounds on which the plaintiff seeks leave.
[17] At the core of the plaintiff’s case is an accusation that the defendant, acting as she did in her capacity as the solicitor to the executors and trustees of the estate of Mr Ian Sandilands, the plaintiff and one of his brothers, neglected her duty by not passing on certain information to the plaintiff which he says would have resulted in him taking a different view concerning a proposed deed of family arrangement which ultimately changed an important aspect of the distribution of their late father’s estate.
1 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9]–[14].
2 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
3 Finewood Upholstery Ltd v Vaughan, above n 1, at [13].
[18] As I said in my judgement, the threshold for the making of an order for security for costs is clearly made out in this case. The plaintiff is resident abroad, has himself given evidence of his impecuniosity and has elected not to put any financial material before the Court to demonstrate that he would be in a position to pay a costs award.
[19] Having concluded that the threshold requirement was met, I turned to consider whether it would be just to make an order. I analysed the conventional grounds including reaching the view that the plaintiff’s case was not an especially strong one (bearing in mind the Court is only required to form an impression of the merits of the parties’ cases).
[20] The plaintiff thinks I was wrong. He has articulated his reasons in the context of this application for leave at some length and in what I have already described as intemperate terms.
[21] The difficulty the plaintiff faces is that his view of whether I was correct in the conclusions I reached as to the apparent strength of his case is only marginally relevant to the outcome of the interlocutory application.
[22] In his most recent memoranda (4 and 15 January 2021), Mr Sandilands places considerable emphasis on an aspect of the defendant’s written submissions. These were filed and served in July 2020 in anticipation of the application for security for costs being heard at that stage. In para 9 of his submission, Mr Darroch said:
9. On 14 February 2013, Ms Signal received an email from Mr Malcolm Sandilands. This contained further information about the way his parents had provided funds to him in Australia. It also referred to concerns about Mr Sandilands. Ms Signal prepared and sent an email to Mr Sandilands’ then lawyer with this information. However, she then requested that it was not passed on to Mr Sandilands because Mr Erskine Sandilands [his fellow trustee and executor] did not want it to be shared with him. This was agreed by the lawyer then acting for Mr Sandilands. Mr Sandilands has described this email as containing information about “Further Gifts” that were made to Malcolm Sandilands by his parents.
[23]As the plaintiff points out, that description of events was reflected in paragraph
[5] of my judgment.
[24] Mr Darroch has since informed the Court that the way he described events in that paragraph was incomplete. Here is how he describes this in paragraph 5 of his 23 December 2020 submissions:
5.It is accepted that the words underlined in this paragraph do not convey the full narrative of what occurred. In fact, the email prepared by Ms Signal was dated 20 March 2013. It did not refer to the earlier email received from Malcolm Sandilands, but it did include information about the funds provided to him by his parents. The Submissions are inaccurate to the extent that they conflict the precise sequence of emails.
[25] Thus, it would seem that the error in Mr Darroch’s original description of events was to imply, or at least to use wording entitling the reader to infer, that Ms Signal passed on the email from Mr Malcolm Sandilands to the plaintiff’s then solicitor immediately, whereas Mr Malcolm Sandilands’ email was not passed on, and Ms Signal did not communicate with the plaintiff’s solicitor about it for a month or so.
[26] However, Ms Signal apparently passed on the substance of the information provided by Mr Malcolm Sandilands to the plaintiff’s solicitor.
[27] In my assessment, that comparatively minor variation on the facts is not material to the determination of the defendant’s application for security for costs.
[28] It is important to remember that I did not strike out or dismiss any aspect of the plaintiff’s claim. All my judgment did was make a modest order for security for costs.
[29] Provided he first pays the security for costs ordered, the plaintiff can pursue his substantive claim against the defendant.
[30] In my judgment, this is not a case in which the Court would be justified in granting leave to appeal.
[31] I do not see that the applicant has demonstrated an arguable error of a factual or legal nature in my analysis.
[32] Certainly I can see no error of general or public importance, and, nor, given that the plaintiff is not prevented from proceeding with his claim, does it appear to me that there is an error of sufficient importance to the plaintiff to outweigh the lack of general or precedential value.
[33] The view I take is that the circumstances of this case do not warrant incurring further delay.
[34] In my judgment, the interests of justice in this case fall heavily in favour of declining the plaintiff’s application for leave to appeal and I do so.
Conclusion
[35]Accordingly, I make the following orders:
(a)the plaintiff is to pay costs and disbursements to the defendant in the total sum of $12,333.00 in relation to the defendant’s interlocutory application for security for costs;
(b)the plaintiff’s application for leave to appeal from my judgment of 10 September 2020 is dismissed.
Associate Judge Johnston
Solicitors:
Darroch Forest, Wellington for defendant
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