Skelton v Nair - [2015] NZCA 343

IN THE COURT OF APPEAL OF NEW ZEALAND

CA294/2015
[2015] NZCA 343

BETWEEN	BEVIN HALL SKELTON Applicant
AND	DARAN NAIR Respondent

Counsel:

Applicant in person
E J L Werry for Respondent

Judgment:

(On the papers)

31 July 2015 at 2 pm

JUDGMENT OF WINKELMANN J
(Review of Registrar’s Decision)

AThe application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.
BThe applicant is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.

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REASONS

Introduction

Mr Skelton appealed a judgment of Asher J striking out his proceeding against the respondent, Mr Nair.[1] He now seeks to review the Registrar’s decision refusing to dispense with the requirement that he pay security for costs on that appeal.

Background

[1]Skelton v Nair [2005] NZHC 832.

The background to the proceeding stretches back over many years. In 2006 Mr Skelton and his wife were involved in litigation. Mr Nair, a chartered accountant, was appointed as a receiver of a partnership known as the Urban and Country Partnership (UCP) which was in effect a partnership of Mr and Mrs Skelton’s trusts.
As receiver of UCP, Mr Nair commenced a proceeding against Mr Skelton’s trust and another associated trust, seeking recovery against the trustees of $439,000. There was a settlement conference on 4 August 2008 before an Associate Judge at which settlement of the claim was reached, and a Heads of Agreement executed by the parties. There were then two later deeds of settlement dated 30 August 2008 (the 2008 deed) and February 2009 (the 2009 deed), in implementation of the Heads of Agreement.
Mr Skelton filed the proceeding the subject of this appeal in July 2014. The original statement of claim was 17 pages in length and contained hundreds of clauses and sub-clauses. Mr Nair applied to strike-out on the basis of that pleading, but Mr Skelton was given an opportunity to file an amended statement of claim before the application was heard.
In an amended statement of claim filed in November 2014 (the Amended Claim), Mr Skelton pleads that on 18 May 2007 Mr Nair entered into an agreement to sell the half share in an apartment owned by Mr Skelton’s interests to a Mr Howcroft, another apartment owner, and his spouse (the Howcroft agreement).
Mr Skelton alleges that Mr Nair did not disclose the existence of this agreement to Mr Skelton, so that when he entered into the Heads of Agreement he believed that the apartment was only subject to offer and the sale of the one‑half share had not yet occurred. Mr Skelton alleges that Mr Nair had a duty to disclose to him as a trustee all material information, including in relation to the sale of the one‑half share in the apartment. Had he been aware of the state of affairs, he would not have signed the Heads of Agreement, settling all claims that he had or may have against the…

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 Skelton v Nair

Details

AGLC: Skelton v Nair [2015] NZCA 343
Case: [2015] NZCA 343
Decision Date: 31 July 2015 at 2 pm

CaseChat Overview and Summary

Skelton v Nair is a case where Mr Skelton appeals a judgment by Asher J that struck out his proceeding against Mr Nair. The Court of Appeal is asked to review the Registrar's decision that Mr Skelton must provide security for costs on the appeal. Mr Skelton's original claim was based on the allegation that Mr Nair failed to disclose an agreement to sell an apartment, resulting in an undervaluation of the property. The claim was struck out on the basis that it was an abuse of process and vexatious, as it attempted to step around an existing settlement of proceedings. Mr Skelton argues that the appeal is not hopeless and that he should not be required to provide security for costs. The Court of Appeal considered the appeal's prospects of success and found them to be slight, as Mr Skelton had entered into two deeds in full and final settlement of the claim. The Court of Appeal dismissed the application to review the Registrar's decision, and Mr Skelton must pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.

The legal issues in this case revolve around the appeal's prospects of success and whether it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security. The Court of Appeal must consider whether the appeal is not hopeless, whether the benefits of proceeding with the appeal outweigh the costs, and whether the appeal is of public importance or significance. The Court of Appeal also considered whether the proceedings were vexatious or an abuse of process, as identified by the Judge. The Court of Appeal found that the appeal's prospects of success were slight, and it was not right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.

Orders