Siemer v Complete Construction Ltd - [2020] NZCA 350

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA556/2019
[2020] NZCA 350

BETWEEN	VINCENT ROSS SIEMER Appellant
AND	COMPLETE CONSTRUCTION LTD Respondent

Counsel:	Appellant in person J M Skinner and E W Davies for Respondent
Judgment: (On the papers)	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On 11 October 2019 Mr Siemer, understood to be a banned litigant at that time under the now repealed s 88B of the Judicature Act 1908, was granted leave by Woolford J[1] to appeal against a decision of Associate Judge Smith dated 12 September 2019.[2] In that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].
[2]Complete Construction Ltd v Siemer [2019] NZHC 2273.
[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…

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.

Continue reading Siemer v Complete Construction Ltd

Details

AGLC: Siemer v Complete Construction Ltd [2020] NZCA 350
Case: [2020] NZCA 350
Decision Date: 14 August 2020 at 10 am

CaseChat Overview and Summary

Vincent Ross Siemer appealed against a decision of the High Court to the Court of Appeal of New Zealand, seeking review of the Deputy Registrar's decision to deny his application to waive the applicable filing fee and to dispense with the requirement to provide security for costs. Siemer was a banned litigant at the time, and the appeal raised novel issues regarding the characterisation of an application to set aside a bankruptcy notice by a banned litigant. The appeal concerned the interpretation of the Court of Appeal (Civil) Rules 2005, and the Court of Appeal Fees Regulations 2001.

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