Tao v Strata Title Administration Limited

[2016] NZCA 594

IN THE COURT OF APPEAL OF NEW ZEALAND

CA226/2016
[2016] NZCA 594

BETWEEN

AN LI TAO
Appellant

AND

STRATA TITLE ADMINISTRATION LIMITED
First Respondent

JIGAR PANDYA
Second Respondent

BODY CORPORATE 198693
Third Respondent

Hearing:	31 October 2016
Court:	Randerson, Cooper and Winkelmann JJ
Counsel:	Appellant in person E St John for Respondents
Judgment:	12 December 2016 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time for the allocation of a hearing date and for filing the case on appeal is declined.

BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

1. The appellant, An Li Tao, has appealed against a summary judgment given by Thomas J in the High Court for the respondents.[1]  The Judge was satisfied none of Ms Tao’s claims against the operators of the relevant unit-titled development could succeed and dismissed her application for the appointment of an administrator for the body corporate.  Ms Tao now applies for an extension of time for the allocation of a hearing date and for filing the case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005.  The procedural history is such that unless the extension is granted the appeal will be deemed abandoned.

   [1]Tao v Strata Title Administration Ltd [2016] NZHC 814.

2. Ms Lao filed the notice of appeal on 19 May 2016.  Filing fees were waived on the basis of financial hardship but she did not pay security for costs.  Rule 35(3) provides that security for costs must be paid within 20 working days after the notice of appeal has been filed.  However, Ms Lao made an application to dispense with or reduce security for costs on the appeal.  That application was declined by Deputy Registrar McGrath on 15 July 2016.  There was a direction that security in the sum of $6,600 was to be paid by 12 August 2016.  In effect, Ms Lao obtained an extension of the time limited by r 35(3).

3. On 25 July Ms Tao applied to review the Deputy Registrar’s decision under r 7(2).  On 14 September 2016 Miller J declined the application to review.[2]  Miller J directed that Ms Tao pay the sum of $6,600 by way of security for costs by Friday 30 September.  This was a further extension of the time for payment of security.

   [2]Tao v Strata Title Administration Ltd [2016] NZCA 437.

4. Ms Tao then sought leave to appeal to the Supreme Court.  In the meantime, she had made the present application to extend the time for filing the case on appeal on 15 August 2016.

5. In a judgment delivered on 9 November 2016, the Supreme Court declined the application for leave to appeal.[3]  In the course of its decision, the Court noted:

   [3]       The judgment of Thomas J contains an extensive review of the applicant’s complaints.  There is no obvious error in the Judge’s analysis. … The applicant did not provide the Deputy-Registrar or Miller J with evidence of her impecuniousness and although she has now provided material as her (limited) income, she has still not addressed her capital position (for instance as to whether she could use her unit as security).  She has from time to time referred to her eligibility for legal aid but nothing tangible (in terms of a grant of legal aid) has emerged.

   [3]Tao v Strata Title Administration Ltd [2016] NZSC 150.

6. When the present application was heard on 31 October, the Supreme Court’s judgment declining leave had not been given.  Ms Tao endeavoured to advance the application on the basis that she needs more time to find legal representation.  She advised that:

   (a)she completed a legal aid application on 1 July 2016 but has not secured a legal aid lawyer who will represent her;

   (b)she cannot afford to pay security for costs, and if this Court does not stay execution of its decision declining her application to review the Deputy Registrar’s decision, her appeal cannot proceed further;

   (c)she was applying for leave to appeal to the Supreme Court against the Court’s security for costs decision;

   (d)there would be no point filing a case on appeal before the security for costs issue was settled; and

   (e)an extension of time for filing the case on appeal would be meaningful and helpful.

7. Clearly, events have moved on.  Miller J’s decision declining the appeal required the payment of security for costs by Friday 30 September.  The effect of the Supreme Court’s judgment declining her application for leave — and upholding Miller J’s decision — is that security for costs should have been paid by 30 September.  Ms Tao confirmed in her memorandum of 25 September that she was not in a position to do so.  The only affidavit she has filed in support of the application is one that asserts that she has sent a completed legal aid application form to three Auckland legal aid providers in July 2016, but without any response.  In the absence of corroborating evidence from Legal Aid Services or the certified providers to whom Ms Tao says she applied, we infer that an application for legal aid has not in fact been made. 

8. The position reached is therefore that:

   (a)Ms Tao did not pay security for costs within the time stipulated by r 35(3), nor within the extended time allowed by Miller J.  The period within which to pay security for costs has lapsed without the costs being paid.  Her obligation to pay security remains outstanding and her efforts to remove or reduce it have failed.

   (b)Under r 37(2), because Ms Tao is in default of her obligation to pay security for costs, she is unable to apply for the allocation of a hearing date under r 38(1). 

   (c)Under r 43(1), an appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file a case on appeal within three months after the appeal is brought.  Ms Tao has not complied with that rule and cannot now do so.

9. The present application has also to be assessed taking into account the Supreme Court’s observations about the absence of obvious error in the thorough High Court judgment and the absence of progress in advancing the appeal to date.   

10. In all the circumstances, we consider that the appropriate course to follow is to decline the application for an extension of time for the allocation of a hearing date and for filing the case on appeal.  As a consequence, the appeal is to be treated as having been abandoned under r 43(1).

11. We make no order as to costs.

Solicitors:
Price Baker Berridge, Auckland for Respondents