Sheehan v Hucker
[2025] NZHC 1413
•30 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-3198
[2025] NZHC 1413
UNDER the Lawyers and Conveyancers Act 2006 IN THE MATTEE
of an appeal against judgment in the District Court
BETWEEN
KATHRYN JANE SHEEHAN
Appellant
AND
MOLLOY HUCKER
Respondent
Hearing: 29 May 2025 Appearances:
Appellant in Person
S Hamilton for Respondent
Judgment:
30 May 2025
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 30/05/2025 at 4 pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Kiely Thompson Caisley, Auckland Copy to Appellant
SHEEHAN v MOLLOY HUCKER [2025] NZHC 1413 [30 May 2025]
Introduction
[1] Ms Sheehan appeals against a decision of Judge Andrée Wiltens dated 7 November 2024 declining to reinstate an earlier application to set aside a default judgment.1
Background
[2] The background to this matter is a dispute involving Ms Sheehan regarding legal fees incurred in the course of another proceeding. Molloy Hucker sued to recover fees incurred by a barrister who acted for Ms Sheehan. Ms Sheehan has made a costs complaint to the New Zealand Law Society. That matter is before the Standards Committee.
[3] Ms Sheehan did not file a statement of defence to the claim in the District Court. On 22 August 2024, the District Court released a judgment against Ms Sheehan awarding damages of $59,285.80 together with interest, and costs and disbursements amounting to $1925.65 (the Default Judgment).
[4] Molloy Hucker has been served with a notice under s 161 of the Lawyers and Conveyancers Act 2006 to stay any proceedings pending the final determination of Ms Sheehan’s complaint to the New Zealand Law Society. The Default Judgment cannot be enforced until the costs complaint is decided.2
[5] On 24 September 2024 Ms Sheehan applied for an order setting aside the Default Judgment.
[6] On 5 November 2024 Ms Sheehan failed to appear to advance her application, she says because she had understood that the matter would be heard in the North Shore District Court, rather than the Auckland District Court. Ms Sheehan says that arrangements were made for her to make a telephone appearance, but she was not able to appear. Judge Andrée Wiltens struck out the application for non-appearance.3
1 Molloy Hucker v Sheehan DC Auckland CIV-2024-044-000733, 27 November 2024 (Minute).
2 Lawyers and Conveyancers Act 2006, s 161(1).
3 Molloy Hucker v Sheehan DC Auckland CIV-2024-044-000733, 5 November 2024 (Minute).
[7] Ms Sheehan then filed a memorandum seeking to reinstate the application which was refused by Judge Andrée Wiltens on 27 November 2024. The Judge said:
Defence Counsel’s memo is noted. The orders made on 07/11/2024 will not be re-called. I consider Ms Sheehan to be further attempting to delay. I do not accept she did not know to appear at ADC. Her appearance at NSDC was [part of] her plan to further delay.
[8] Ms Sheehan subsequently filed the current appeal in the High Court by way of notice of appeal dated 2 December 2024.
[9] The notice of appeal states that Ms Sheehan seeks to appeal “any and all decisions of the District Court North Shore obtained by Molloy Hucker in CIV 2024-044-733”. An initial issue raised by the respondent was whether the appeal was a nullity as it was uncertain which judgments Ms Sheehan wishes to appeal. The respondent submitted that the High Court does not have jurisdiction to set aside the Default Judgment, nor could Ms Sheehan appeal against that judgment as her remedy is an application to set the default judgment aside which she has already exercised unsuccessfully.
[10] During the case management conference on 11 February 2025, Mr Hamilton accepted that the decision of Judge Andrée Wiltens to decline to reinstate the application to set aside the default judgment was a matter which, prima facie, could properly be appealed. On that basis I said that the appeal was not a nullity.4
[11] I made an order that Ms Sheehan must pay security for costs by 25 February 2025. Ms Sheehan did not pay security for costs by that date. casein a memorandum filed prior to a management conference on 1 April 2025, counsel for Molloy Hucker submitted that by operation of s 126(3) of the District Court Act 2016, the appeal was deemed to be abandoned upon non-payment of security for costs. Ms Sheehan did subsequently pay the security for costs by 1 April 2025.
[12] On 2 April 2025 Robinson J issued a minute declining to decide the issue of jurisdiction saying that there is conflicting authority as to whether the Court has
4 Sheehan v Molloy Hucker HC Auckland CIV-2024-404-3198, 12 February 2025 (Minute).
jurisdiction to enlarge the time for payment of security for costs after the date by which the Court ordered security to be paid.5
The appeal
[13] The appeal then proceeded to hearing, and submissions were heard from Ms Sheehan and from Mr Hamilton for Molloy Hucker.
[14] Just before lunch, Ms Sheehan indicated that she would like to take an early adjournment in order to discuss possible resolution of the matter with Mr Hamilton. I adjourned the Court for those discussions to take place.
[15] At 2.15 pm, Ms Sheehan and Mr Hamilton advised that agreement had been reached and sought directions by consent. The directions sought were that:
(1)the appeal be dismissed;
(2)costs be awarded on a 2B basis in favour of the respondent with disbursements to be fixed by the Registrar in the usual way;
(3)security for costs held by the Court be disbursed immediately to the respondent; and
(4)the non-publication order in respect of Ms Sheehan’s address is to continue.
[16] Mr Hamilton asked that the orders be delivered by way of judgment rather than minute, and I agreed to deliver this judgment.
[17] I also briefly discussed the jurisdictional issue at the conclusion of the hearing, although no decision is required as the matter resolved.
5 Sheehan v Molloy Hucker HC Auckland CIV-2024-404-3198, 2 April 2025 at [5], citing Gabriel Clarke “What do you mean my appeal has been abandoned?”([024) NZLJ 406. See also SNB Holdings Ltd v Slabbert [2024] NZHC 492; and Malcom v Saxton [2024] NZHC 1969.
[18] The jurisdictional issue arises because this an appeal brought under s 124 of the District Court Act. Section 126(3) of the District Court Act provides that “[i]f security for costs is not given within the time required by the High Court Rules 2016, the appeal is abandoned”.
[19] The High Court Rules contains a provision giving the Court a wide power to extend or shorten the time fixed by any order for doing any act or taking any proceeding, or any step in a proceeding, on such terms as the Court thinks just.6 Rule 1.19(2) specifically provides that “[t]he Court may order an extension of time although the application for the extension is not made until after the expiration of the time appointed or fixed”.
[20] Rule 1.19 must however be read together with r 20.13, which applies more specifically to security for costs in respect of any appeal. Rule 20.13(4) and (5) provide:
(4)Security must be paid to the Registrar at the registry of the court no later than 10 working days after the case management conference, unless the Judge otherwise directs.
(5)Except in the case of an appeal under the District Court Act 2016; and (where non-compliance with the security order results in a deemed abandonment of the appeal under section 126 of that Act), if the security is not paid within the time specified under subclause (4), the respondent may apply for an order dismissing the appeal.
[21] Rule 20.13(5) permits a respondent to apply for an order dismissing an appeal except where non-compliance with the security order results in a deemed abandonment of the appeal under s 126 of the District Court Act. Rule 20.13 could be read as having either substantive or procedural effect. In other words, it could be read as providing a pathway for a respondent to apply for an order dismissing an appeal while making it clear that no such order is required where s 126 applies. Alternatively, it could be read as making it clear that s 126 was intended to create finality and there is no possibility that a matter deemed abandoned pursuant to s 126 could be reinstated thereby necessitating an application for an order dismissing it.
6 High Court Rules 2016, r 1.19(1).
[22] Cooke J in SNB Holdings Ltd v Slabbert followed an earlier decision of Heath J in Graham v Mills where Heath J said:7
If an absolute position were taken as to the consequence of abandonment of the appeal a party who, for good reason (for example, a medical emergency), did not pay security until one day after the fixed time would lose the right to appeal. Similarly, a party who deposited the security with his or her solicitor only to find that the solicitor failed to pay security to the Registrar in a timely manner would also lose the right to appeal. It is unlikely that those unjust consequences were intended. If they had been, one would have expected much more explicit language to be used to achieve a result that would affect so drastically a litigant’s access to this Court for an appeal brought as of right.
In my view, there is jurisdiction under either r 6 or 713(4) to extend the time to pay security. The existence of an ability to extend time should not cause any particular problems in practice. A respondent, on learning that security has not been paid, is unlikely to take further steps and the appeal will be treated as abandoned unless and until an order extending the time has been made and payment effected.
[23]Cooke J held:8
[16] The relevant rules should accordingly not be applied in an overly technical way. The contemporary approach to civil procedure no longer involves the pedantic application of the rules, but the application of them in a way that best secures the just, speedy and inexpensive determination of proceedings. Moreover, the view that there is no jurisdiction is not one that ultimately arises from the wording of the rules, as on their face they permit a retrospective extension of time. Rather it is more a matter of logic — that you cannot grant leave in relation to a proceeding that no longer exists. But that logic is not inevitable, particularly when the Court is required to interpret the text of the rules in light of their purpose, and in the relevant context.
[17] That it would be contrary to the spirit of the rules to find the Court lacked jurisdiction to grant an extension is illustrated by the alternative approach suggested by the authors of Civil Procedure: District Courts and Tribunals — that the appeal is abandoned, but a fresh appeal can be brought, if necessary by seeking leave to appeal out of time. That is an overly complex procedural workaround to ensure the rules do not operate unjustly. In my view it is best to address the issue directly.
[18] For these reasons I conclude that there is jurisdiction to extend the time for payment of security for costs under r 1.19 notwithstanding that the original time for payment has passed.
[24]In Malcolm v Saxton Powell J took a different view, saying:9
7 SNB Holdings Ltd v Slabbert, above n 5, at [10]; and Graham v Mills (2005) 18 PRNZ 157 (HC) at [24]–[25].
8 SNB Holdings Ltd v Slabbert, above n 5 (footnotes omitted)..
9 Malcom v Saxton [2024] NZHC 1969..
[11] For completeness, I observe that had s 143(4) applied, I would have respectfully declined to follow the approach taken in SNB Holdings Ltd v Slabbert and the other High Court cases referred to in that judgment.10 Instead the correct approach is as set out by the Supreme Court in Siemer v Heron11 and the Court of Appeal in Hermans v Hermans.12
[12] It is undoubtedly correct that r 1.19 of the HCR would have applied and would have given the Court jurisdiction to “order an extension of time although the application for the extension is not made until after the expiration of the time appointed or fixed”.13 It does not however provide the Court power to reinstate proceedings already deemed abandoned by operation of statute. In particular, where security for costs on an appeal pursuant to s 124 has not been paid, s 126(3) applies and the appeal is abandoned from the point of which that security was not paid. Once the appeal is abandoned [where the] Court purports to grant a retrospective extension of time r 1.19 is not wide enough to reinstate proceedings deemed abandoned by statute. In those circumstances there can be no jurisdiction to reinstate an appeal so abandoned.
[25] Because this appeal was resolved by consent, it is not necessary for me to come to a view as to which approach I should follow. I do note, however, that on either approach there is an available remedy for an appellant who fails to pay security for costs on time.
[26] If the Cooke J approach is followed, then the appellant can apply for a retrospective extension of time. If the Powell J approach is followed, then the appellant would be required to apply for leave to bring a fresh appeal. In neither situation is an appellant left entirely without a remedy. However, what is clear from all of the decisions is that an appellant who fails to pay security for costs on time will need to persuade the Court either that an extension of time should be granted retrospectively or that leave should be granted for a fresh appeal. On either basis leave is unlikely to be granted unless there is a very good reason to do so.
[27] Failure to pay security for costs in a timely manner will usually result in the appeal being deemed to be abandoned, and in most cases that is likely to be the end of the matter. Whichever approach is followed, a similar test is likely to apply for the continuation or reopening of a matter deemed abandoned by statute.
10 Graham v Mills, above n 7, at [21]–[26]; and Koh v Advisory Accountants Ltd [2024] NZHC 305 at [7].
11 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [39].
12 Hermans v Hermans [1961] NZLR 390 (CA) at 393.
13 High Court Rules 2016, r 1.19(2).
Result
[28]I make the following orders by consent:
(1)The appeal is dismissed.
(2)I award 2B costs in favour of the respondent and disbursements to be fixed by the Registrar.
(3)The security for costs held by the Court is to be disbursed to the respondent with immediate effect.
(4)The order for non-publication of Ms Sheehan’s address remains in place.
Wilkinson-Smith J
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