Slavich v Slavich

[2016] NZCA 12

IN THE COURT OF APPEAL OF NEW ZEALAND

CA350/2012
[2016] NZCA 12

BETWEEN	JOHN KENNETH SLAVICH Appellant
AND	ALLISON SLAVICH Respondent

Court:

Randerson, Wild and Cooper JJ

Counsel:

Appellant in Person
K I Bond for Respondent

Judgment:

(On the papers)

12 February 2016 at 10:00 am

JUDGMENT OF THE COURT

AThe appellant must pay to the respondent costs of $1,000 in relation to the abandonment of the appeal.

B    That sum is to be deducted from the amount the appellant has paid into Court for security for costs. 

CThe balance, including any accumulated interest, is to be paid to the appellant.

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REASONS OF THE COURT

(Given by Randerson J)

1. This appeal was deemed to be abandoned under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules) on 21 December 2012.  The appellant paid security for costs in the sum of $5,560.  He was subsequently adjudicated bankrupt. 

2. The appellant requests that the amount paid for security for costs be refunded to him.  The Official Assignee has advised that no claim is made to this sum on behalf of the appellant’s bankrupt estate.  The respondent requests that the amount be paid to her.  First, she says there are outstanding costs orders made in her favour against the appellant in the High Court which substantially exceed the amount paid for security for costs.  Alternatively, if the Court is not willing to make an order that the security for costs be paid to her, then she seeks to have deducted from the security for costs an amount of $1,393 for legal costs she has incurred in relation to the appeal and an order that this sum be paid to her. 

3. The respondent’s counsel says that, although none of the steps identified in sch 2 of the Rules was taken prior to the abandonment of the appeal the respondent nevertheless incurred legal costs.  This included advice from counsel on the appellant’s application for a waiver of security for costs and advice in connection with the notice of appeal received. 

4. The appellant submits this Court has no power to award costs to the respondent in these circumstances but, even if the Court has the ability to award costs, any such costs would be minimal.  He also maintains the respondent’s solicitors acted on a pro bono basis. 

5. We are not persuaded this Court has jurisdiction to order that the amount paid for security for costs be paid to the respondent to satisfy outstanding costs orders in the High Court.  We accept the appellant’s submission that the amount paid for security for costs is solely for the purpose of providing security for any costs this Court might order in favour of the respondent in connection with the appeal.  We are unable to accept the respondent’s submission that r 48(4) has any application where an appeal is abandoned but not considered substantively.[1]  However, we are satisfied there is jurisdiction to award costs to the respondent on the abandonment of the appeal and to offset that amount against the security for costs otherwise refundable to the appellant.[2]

   [1]See the doubts expressed in the recent judgment of this Court in Pub Charity Inc v Department of Internal Affairs [2016] NZCA 11.

   [2]Under r 44(3) of the Rules. 

6. In the circumstances, we make the following orders:

   (a)The appellant must pay to the respondent costs of $1,000 in relation to the abandonment of the appeal.

   (b)That sum is to be deducted from the amount the appellant has paid into Court for security for costs. 

   (c)The balance, including any accumulated interest, is to be paid to the appellant. 

Solicitors:
Harkness Henry, Hamilton for Respondent