SNB Holdings Limited v Slabbert - [2024] NZHC 492

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-285

[2024] NZHC 492

UNDER Part 20 of the High Court Rules 2016

IN THE MATTER

of an appeal against a judgment of the District Court

BETWEEN

SNB HOLDINGS LIMITED

Appellant

AND

DAVID SLABBERT AND VALERIE CYNTHIA SLABBERT

Respondents

Hearing: 28 February 2024

Appearances:

P V Cornegé for Appellant A G Stuart for Respondents

Judgment:

8 March 2024

JUDGMENT OF COOKE J

(Extending time to pay security for costs)

[1] In February 2022 the appellant entered an agreement to purchase the respondents’ house. In breach of the agreement the appellant did not complete the purchase and the agreement was cancelled. The plaintiffs re-marketed the property and it was subsequently sold for $248,000 less than the contracted purchase price. The respondents then sought summary judgment in the District Court. The appellant accepted it was liable but disputed quantum, including on the basis that the respondents did not act reasonably on the re-sale. By oral judgment dated 5 October 2023 Judge Hollister-Jones granted summary judgment for $263,313.79 together with interest and costs.1

1 David Slabbert v SNB Holdings Ltd [2023] NZDC 22580.

SNB HOLDINGS LIMITED v SLABBERT [2024] NZHC 492 [8 March 2024]

[2] By notice of appeal dated 1 November 2023 the appellant appealed to this Court. The parties filed a joint memorandum in advance of the first case management conference, and including the agreement that the appellant pay security for costs in the amount of $1,195 within 10 working days. Such orders were made by consent by Downs J on 20 November and appearances at the first call were excused.

[3] The appellant failed to pay the security within the time required. One of its directors, Mr Benjamin De’Ath has explained that this was simply an oversight and as soon as the appellant’s lawyers brought it to his attention he paid the required security. The respondents contend, however, that as a consequence of s 126 of the District Courts Act 2016 the appeal is deemed to be abandoned.

[4] The issue to be determined is whether this Court has any jurisdiction to extend the time for paying security retrospectively (or otherwise) to effectively enable the appeal to be pursued, and if there is jurisdiction whether that should be exercised in the present case. When the proceedings were called before me in the Judge’s Chambers List on 28 February 2024 it was agreed that I could determine that issue based on the written submissions that had been filed by the parties, and the additional oral submissions they advanced to me at that time.

Relevant provisions and case law

[5]The High Court Rules 2016 provide:

20.13 Security for appeal

(1)This rule applies to an appeal other than an appeal for which the appellant has been granted legal aid under the Legal Services Act 2011.

(2)The Judge must fix security for costs at the case management conference relating to the appeal, unless the Judge considers that…

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.

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Details

Case: [2024] NZHC 492
Decision Date: 8 March 2024

CaseChat Overview and Summary

SNB Holdings Limited sought to appeal against a summary judgment entered by the District Court in favour of the respondents, David and Valerie Slabbert. The judgment was in relation to a failed property sale where SNB Holdings Limited did not complete the purchase in breach of the contract, and the respondents subsequently sold the property for $248,000 less than the contracted price. The issue in the appeal was whether the respondents acted reasonably in re-selling the property. The respondents argued that the appeal should be dismissed for failure to pay security for costs within the time required by the High Court Rules 2016. SNB Holdings Limited had failed to pay the required security within the time specified but had paid the required amount as soon as the failure was brought to their attention. The issue before the Court was whether it had jurisdiction to extend the time for paying security for costs and, if so, whether it should be exercised in this case.

The Court concluded that it had jurisdiction to extend the time for paying security for costs under r 1.19 of the High Court Rules 2016. The District Courts Act 2016 provides that if security for costs is not given within the time required by the High Court Rules 2016, the appeal is abandoned. However, the High Court Rules 2016 also provide that the court may, in its discretion, extend or shorten the time appointed or fixed by the rules. The Court found that the relevant rules should be interpreted in light of their purpose, which is to ensure just, speedy, and inexpensive determination of proceedings, and that the true significance of r 20.13(5) is that the opposing party is not required to apply to the Court to obtain an order that the appeal is abandoned. On these bases the Court concluded that there was jurisdiction to extend the time for payment of security for costs under r 1.19 notwithstanding that the original time for payment had passed.

The Court also concluded that leave should be granted to extend the time in this case. The appeal was legitimate, the failure to pay security was an oversight, and there was no prejudice to the respondents. The amount required to be paid by way of security was a notional amount compared to the likely costs of the appeal, and the appellant was prepared to lodge a more meaningful amount by way of security. In light of these factors the Court accepted that the time for payment of security for costs should be extended and that an additional amount of $10,000 must be paid within 10 working days of the issue of this judgment. If the further amount was not paid within that time the appeal was dismissed. If the further amount was paid the appeal was to be set down for hearing in accordance with the other directions that were earlier made by Downs J.

The respondents were to have the costs associated with this application, to be calculated on a 2B basis.

Orders