Spicer v Credit Link Factors Ltd
[2012] NZCA 69
•6 March 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA256/2011 [2012] NZCA 69 |
| BETWEEN DAVID RICHARD JOHN SPICER |
| AND CREDIT LINK FACTORS LTD |
| AND BRENDAN MCDONNELL |
| AND RICHARD WILLIAMS |
| Counsel: Applicant in person |
| 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 hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.[8] Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.[9]
Discussion
[7]Fava v Zaghloul [2007] NZCA 498 at [9].
[8]Creser v Official Assignee CA196/05, 12 June 2006 at [29].
[9]Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].
For the following reasons, I consider that the Registrar was right to refuse to dispense with the requirement to pay security for costs in the present case.
First, the merits of the appeal are weak. The appeal concerns a debt owed by Mr Spicer to his previous solicitor, Mr Williams, in respect of outstanding legal fees. Mr Williams’ successor, Mr McDonnell, assigned the debt to Credit Link in December 2007. On 27 September 2010, after a defended hearing at which both Mr Williams and Mr Spicer gave evidence, the Disputes Tribunal ordered Mr Spicer to pay Credit Link $10,497.85. Associate Judge Gendall described the decision of the Disputes Tribunal as “carefully reasoned”.[10] Mr Spicer applied for a rehearing but his application was dismissed by the Disputes Tribunal on 12 January 2011. It appears that Mr Spicer sought to raise a counterclaim or set-off before the Disputes Tribunal but that was rejected.
[10] At [17].
Second, in addition to the appeal against the judgment of Associate Judge Gendall, Mr Spicer purports to appeal against the two decisions of the Disputes Tribunal. However, there is no right of appeal to this Court from those decisions. An order of the Disputes Tribunal is final and binding against all parties, except to the extent that it is successfully appealed to the District Court under s 50 of the Disputes Tribunals Act 1988.[11] Mr Spicer has not sought to appeal to the District Court against the order that he pay Credit Link $10,497.85. Thus that order remains binding on him. He cannot seek to challenge the propriety of the order on the appeal to this Court.
[11] Disputes Tribunals Act 1988, ss 23 and 50.
Finally, the issues raised by the appeal are not of general importance, nor is there any public interest in having them determined. Mr Spicer submitted in his application for review that Credit Link has lied to and misled the Disputes Tribunal and the High Court, and that it is in the public interest to have such a “travesty of justice” corrected. The allegation that Credit Link misled the Disputes Tribunal was explicitly considered and rejected by the Disputes Tribunal in the context of the re-hearing application and was impliedly dismissed by the Associate Judge. No evidence has been pointed to in support of the allegation.
In summary, this case does not involve any exceptional circumstances such as to justify dispensing with the requirement to pay security for costs. The respondent should not be forced to face the threat of a hopeless appeal without provision for security.
Decision
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. There is no order for costs on this application.
Solicitors:
0
0
0