Tao v Strata Title Administration Ltd - [2017] NZCA 130

IN THE COURT OF APPEAL OF NEW ZEALAND

CA449/2016
[2017] NZCA 130

BETWEEN	AN LI TAO Appellant
AND	STRATA TITLE ADMINISTRATION LIMITED AND ORS Respondents

Court:

Randerson, Asher and Brown JJ

Counsel:

Appellant in Person
C Baker for Respondents

Judgment:

(On the papers)

24 April 2017 at 11:00 am

JUDGMENT OF THE COURT

AThe application for an extension of time for filing the case on appeal is declined.
BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

This is an application by Ms Tao under r 43(2) of the Court of Appeal (Civil) Rules 2005 for an extension of time to file the case on appeal.

Background

In proceedings separate to the present case, Ms Tao appealed against a summary judgment given by Thomas J in favour of the respondents on 27 April 2016 (the substantive proceedings).[1] Filing fees were waived on the basis of financial hardship, but she did not pay security for costs. Ms Tao made an application to dispense with or reduce security for costs. That application was declined by Deputy Registrar McGrath on 15 July 2016. Miller J declined an application by Ms Tao for review of that decision.[2] Ms Tao unsuccessfully sought leave to appeal to the Supreme Court.[3]
[1]Tao v Strata Title Administration Ltd [2016] NZHC 814.
[2]Tao v Strata Title Administration Ltd [2016] NZCA 437.
[3]Tao v Strata Title Administration Ltd [2016] NZSC 150.
In the meantime, Ms Tao sought an extension of time to file the case on appeal in the substantive proceedings on the basis that she needed more time to find legal representation. This Court declined the application.[4] It found that Ms Tao had ample opportunity to find legal representation. Ms Tao stated in her affidavit, which is the same affidavit filed in support of the present application, that she had sent completed legal aid applications to three Auckland legal aid providers in July 2016, but had not received any response. In the absence of corroborating evidence, the Court inferred that no such applications had in fact been made. The position reached was:[5]
(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…

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.

Continue reading Tao v Strata Title Administration Ltd

Details

AGLC: Tao v Strata Title Administration Ltd [2017] NZCA 130
Case: [2017] NZCA 130
Decision Date: 24 April 2017 at 11:00 am

CaseChat Overview and Summary

The Court of Appeal heard an application by Ms Tao for an extension of time to file her case on appeal against a costs judgment given in the High Court. The appeal was against a judgment of Thomas J, who had held that the respondents were entitled to costs of $48,168 plus a 25 per cent uplift, bringing the total to $60,210. Ms Tao sought an extension of time on the basis that she needed more time to find legal representation, and to resolve issues arising out of her inability to afford security for costs. The respondents opposed the application, arguing that Ms Tao had had ample time to organise legal representation and that there was nothing in the history of this proceeding to indicate that the granting of the present application would facilitate Ms Tao obtaining legal representation.

The court considered the legal issues, including whether Ms Tao had provided adequate reasons for the delay in filing the case on appeal and whether the appeal had been abandoned under r 43(1). The court found that Ms Tao had not provided adequate reasons for the delay and that her claims that she had tried to obtain legal representation were unsubstantiated. The court noted that Ms Tao had had over 10 months to secure legal representation and that her refusal to pay security for costs meant that she was unable to apply for the allocation of a fixture under r 38(1). The court concluded that Ms Tao's appeal must be treated as having been abandoned under r 43(1).

The Court of Appeal declined the application for an extension of time to file the case on appeal. Given the contained nature of the legal attendances, the court made no order as to costs. The appeal was dismissed, and there was no order as to costs.

Orders