Spicer v Credit Link Factors Ltd - [2012] NZCA 69

IN THE COURT OF APPEAL OF NEW ZEALAND

CA256/2011
[2012] NZCA 69

BETWEEN DAVID RICHARD JOHN SPICER
Applicant

AND CREDIT LINK FACTORS LTD
First Respondent

AND BRENDAN MCDONNELL
Second Respondent

AND RICHARD WILLIAMS
Third Respondent

Counsel: Applicant in person
I Caddis for Respondents

Judgment: 6 March 2012 at 4 p.m.

JUDGMENT OF ARNOLD J

The application for review of the Acting Registrar’s decision as to security for costs is declined. Security for costs of $5,560.00 must be paid into Court within 20 working days of the date of this judgment.

_______________________________________________________________

REASONS

Introduction

Mr Spicer filed an appeal in this Court on 19 April 2011 against a decision of Associate Judge Gendall in which he refused to set aside a bankruptcy notice served on Mr Spicer by the respondent, Credit Link Operations Ltd (Credit Link), in respect of a judgment debt of $10,497.85 plus costs.[1] Security for costs on the appeal was set at $5,560.
[1] Credit Link Factors Ltd v Spicer HC Wellington CIV-2011-485-241, 8 April 2011.
On 20 October 2011 Mr Spicer applied for dispensation from the requirement to pay security for costs.[2] Credit Link opposed the application. In a letter dated 2 December 2011, the Acting Registrar declined to dispense with security. Mr Spicer has applied for a review of that decision.

The Registrar’s Decision

[2] Court of Appeal (Civil) Rules 2005, r 35(6)(c).

In his letter, the Acting Registrar noted that Mr Spicer’s alleged impecuniosity was not in itself sufficient reason to dispense with security. The Acting Registrar considered that he could not comment on the merits of the appeal, but said that the circumstances of the appeal could not be considered exceptional. Nor, in his view, did the appeal raise any matters of public importance or significance. He considered that security was necessary in order to protect Credit Link in the event that Mr Spicer’s appeal is unsuccessful and he is ordered to pay costs.
The Acting Registrar concluded that this was not an appropriate case in which to grant dispensation from the requirement to pay security. Security of $5,560 was to be paid by 20 January 2012.
Mr Spicer applied for a review of the Registrar’s decision on 16 December 2011, within the 10 working day period provided for in the Court of Appeal (Civil) Rules 2005.[3]

Security for Costs - General Principles

[3] Rule 7(3).

In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[4] An appellant may apply to the Registrar for a waiver of security within 20 days of filing the appeal[5] and the Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[6]
[4]Rule 35(2).
[5]Rule 35(3) and (6).
[6]Rule 35(6).
Security for costs will be waived where it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver.[7] The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of…

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: [2012] NZCA 69
Decision Date: 6 March 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, David Richard John Spicer filed an appeal against Credit Link Factors Ltd, Brendan McDonnell, and Richard Williams regarding a bankruptcy notice served on him in relation to a judgment debt. The appeal was dismissed by Associate Judge Gendall, and the security for costs was set at $5,560. Mr. Spicer applied for dispensation from the requirement to pay security for costs, which was opposed by Credit Link. The Acting Registrar declined to dispense with security and Mr. Spicer applied for a review of that decision. The court had to determine whether the Acting Registrar's decision to decline to dispense with the requirement to pay security for costs was correct.

The court considered the general principles of security for costs and the exceptional circumstances required to justify waiver. It was noted that the merits of the appeal were weak, and the appeal did not involve any exceptional circumstances or matters of public importance or significance. The court found that the Acting Registrar was right to refuse to dispense with the requirement to pay security for costs in the present case.

The application for review of the Acting Registrar’s decision as to security for costs was declined. Security for costs of $5,560.00 must be paid into Court within 20 working days of the date of this judgment. There is no order for costs on this application.

Orders