Tao v Strata Title Administration Ltd - [2016] NZCA 437

IN THE COURT OF APPEAL OF NEW ZEALAND

CA226/2016
[2016] NZCA 437

BETWEEN	AN LI TAO Appellant
AND	STRATA TITLE ADMINISTRATION LIMITEDFIRST RESPONDENTJIGAR PANDYASECOND RESPONDENTBODY CORPORATE 198693 Third Respondent

Counsel:

Appellant in person
E St John for Respondents

Judgment:

(On the papers)

14 September 2016 at 3.00 pm

JUDGMENT OF MILLER J
(Review of Registrar’s Decision)

AThe application to review the Deputy Registrar’s decision declining to dispense with or reduce security for costs is declined.
BThe appellant is to pay the sum of $6,600 by way of security for costs by Friday 30 September.

____________________________________________________________________

REASONS

On 25 July Ms Tao sought review of a decision by Deputy Registrar McGrath pursuant to r 7(2) of the Court of Appeal (Civil) Rules 2005 (the Rules). The decision of the Deputy Registrar, dated 15 July 2016, declined Ms Tao’s application to dispense with or reduce security for costs in her appeal. It directed that security remained at $6,600 and was to be paid by 12 August 2016.
On 12 August I gave a direction that the time for compliance was extended by six weeks.
The appeal itself is against a decision of Thomas J in the High Court in which she gave summary judgment for Strata Title Administration Ltd (Strata) and Mr Pandya and dismissed Ms Tao’s application for the appointment of an administrator to Body Corporate 198693.[1]
[1]Tao v Strata Title Administration Ltd [2016] NZHC 814.
Security for costs should not be dispensed with unless it is right to require the respondents to respond to an appeal brought by an impecunious appellant without the usual protection for their costs provided by security.[2] Where the appeal is one that would not be pursued by a sensible, solvent litigant, there will be no basis for dispensing with security for costs.[3]
[2]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [21] and [31].
[3]At [35].
I have reviewed Deputy Registrar McGrath’s decision. For the reasons given by her, I agree that there should be no dispensation or reduction of security for costs. In particular:
(a)Deputy Registrar McGrath correctly identified and applied the principles laid down by the Supreme Court in Reekie v Attorney‑General.
(b)As a result of the lack of evidence provided, the Deputy Registrar was not satisfied that Ms Tao was impecunious. Because the application failed on other considerations she put that issue to one side.
(c)She saw no public interest in the appeal.
(d)She found that the potential benefits of the appeal to Ms Tao were outweighed by the potential costs.
(e)The Deputy Registrar found that, for a variety of reasons, none of the 18 substantive grounds of appeal were likely to warrant a successful appeal of the discretionary decision not to grant Ms Tao’s application for an appointment of an administrator. She noted that an appeal against a discretionary decision faces a high threshold for success.
(f)She found that the appeal against the summary judgment required only that Ms Tao establish it is not…

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: [2016] NZCA 437
Decision Date: 14 September 2016 at 3.00 pm

CaseChat Overview and Summary

An Li Tao, the appellant, has sought review of a decision made by the Deputy Registrar in the Court of Appeal of New Zealand, declining her application to dispense with or reduce security for costs in her appeal. The appeal itself challenges a decision of Thomas J in the High Court, which gave summary judgment for Strata Title Administration Ltd and Jigar Pandya, dismissing Tao's application for the appointment of an administrator to Body Corporate 198693. The primary legal issue before the court was whether the Deputy Registrar's decision to deny Tao's application to dispense with or reduce security for costs should be reviewed. The court needed to determine whether the appeal had merit and whether there were exceptional circumstances warranting a dispensation or reduction of security for costs.

The court examined the principles set out in Reekie v Attorney-General, which hold that security for costs should not be dispensed with unless it is right to require the respondents to respond to an appeal brought by an impecunious appellant without the usual protection for their costs provided by security. The Deputy Registrar had correctly identified and applied these principles. The court noted that Tao had not provided sufficient evidence to establish her impecunious status, and the application failed on other grounds. The Deputy Registrar found that the potential benefits of the appeal to Tao were outweighed by the potential costs, and that none of the 18 substantive grounds of appeal were likely to warrant a successful appeal. The appeal was considered to have "reasonably slim" merit. Additionally, no exceptional circumstances had been raised that would justify dispensing with or reducing security for costs. The court agreed with the Deputy Registrar's decision and declined the application to review the decision, ordering Tao to pay the sum of $6,600 by way of security for costs by 30 September.

Orders