| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA556/2019 [2020] NZCA 350 |
| BETWEEN | VINCENT ROSS SIEMER |
| AND | COMPLETE CONSTRUCTION LTD |
| Counsel: | Appellant in person |
Judgment: | 14 August 2020 at 10 am |
JUDGMENT OF CLIFFORD J
(Review of Deputy Registrar’s Decision)
The application for review of the Deputy Registrar’s decisions is granted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
On 11 October 2019 Mr Siemer, understood to be a banned litigant at that time under the now repealed s 88B of the Judicature Act 1908, was granted leave by Woolford J[1] to appeal against a decision of Associate Judge Smith dated 12 September 2019.[2] In that judgment the Associate Judge concluded that, as a banned litigant, Mr Siemer required leave of the Court to file a notice of opposition to bankruptcy proceedings, that action constituted the commencement of proceedings.[3]
[1]Complete Construction Ltd v Siemer HC Auckland CIV-2019-404-423 [Leave decision].
[3]That is a very simple summary of a complex procedural background, involving not only the Associate Judge’s decision but that of other judicial officers as well.
Woolford J granted Mr Siemer leave to appeal that decision in the following terms:[4]
[19] I am satisfied that this is one of the rare cases where such leave should be granted as it raises a novel point about the characterisation of an application to set aside a bankruptcy notice by a banned litigant. The bankruptcy notice told Mr Siemer that if he had a counterclaim he must, within 10 working days, apply to the High Court supported by affidavit. Is a banned litigant reliant on the leave of a High Court Judge to defend a bankruptcy notice?
[20] I accordingly grant leave to Mr Siemer to appeal against the decision of Associate Judge Smith dated 12 September 2019 to the Court of Appeal on the following three grounds:
(a)Was leave of the High Court required for Mr Siemer to apply to set aside the bankruptcy notice served on him by Complete Construction Limited on 25 March 2019, as determined by Associate Judge Smith in his minute dated 7 May 2019 and confirmed in his judgment dated 12 September 2019?
(b)If leave of the High Court was required, what consideration, if any, should be given to the fact that Mr Siemer was “merely responding to a step taken by the Judgment Creditor” as described by Associate Judge Smith in his minute dated 2 May 2019?
(c)Was it appropriate to award costs against Mr Siemer for the hearing on 2 September 2019, or at all?
[4]Leave decision, above n 1.
Mr Siemer filed his notice of appeal on 16 October 2019. In doing so, Mr Siemer applied for a waiver of the applicable filing fee of $1,100. Mr Siemer subsequently applied for dispensation to provide the, standard, security for costs on an appeal…
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- AGLC
- Siemer v Complete Construction Ltd [2020] NZCA 350
- Case
- [2020] NZCA 350
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Deputy Registrar correctly exercised her discretion to deny Siemer's applications to waive the filing fee and to dispense with the requirement to provide security for costs. The court had to consider whether the appeal raised a matter of genuine public interest and whether Siemer was impecunious.
The court held that the appeal raised a matter of genuine public interest as it involved a novel issue regarding the characterisation of an application to set aside a bankruptcy notice by a banned litigant. The court also held that the appeal was of public importance, even though Siemer was not impecunious. Therefore, the court granted Siemer's application to dispense with the requirement to provide security for costs. Furthermore, the court held that a waiver of fees was appropriate given the recent conflicting authority from the High Court on the question of whether Siemer was a banned litigant at the relevant time.
The court granted Siemer's application for review of the Deputy Registrar's decision to deny his applications to waive the filing fee and to dispense with the requirement to provide security for costs. The court considered coordinating the two proceedings concerning Siemer's banned litigant status and his application to vary the grounds of appeal set by Woolford J.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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