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

1. 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. 

2. On 12 August I gave a direction that the time for compliance was extended by six weeks. 

3. 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.

4. 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].

5. 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 clear her claims against Strata and Mr Pandya cannot succeed.  On that basis the Deputy Registrar concluded the appeal had “reasonably slim” merit.

   (g)She considered that no exceptional circumstances had been raised that justified dispensation or reduction of security and noted Ms Tao was the only unit owner to have brought proceedings, despite other unit owners being equally affected by the issues raised.

6. Ms Tao has indicated she is eligible for legal aid.  Her application said she was unable to secure a legal aid lawyer.  Deputy Registrar McGrath advised that if Ms Tao was successful in her application for legal aid, security for costs would no longer be required and any already paid would be refunded.  Ms Tao has since advised that she has engaged a legal aid lawyer but that he could not look at her case for six weeks.  I observe that r 36 of the Rules provides exemptions from security for costs requirements for appellants that have applied for or been granted legal aid at the time the appeal is brought.  The Deputy Registrar’s advice cannot apply to Ms Tao unless a legal aid application was filed when the appeal was brought.[4]  Other than the assertions detailed above — which indicate no application has yet been made — nothing has been put before me showing that an application for legal aid was made at that time.  Therefore I must proceed on the basis that no such application was made.

   [4]White v Lynch [2015] NZCA 376 at [18].

7. Ms Tao’s submissions allege that since the Deputy Registrar’s decision, the conflict between her and the respondents has escalated.  This does not alter Ms Tao’s position in respect of security for costs.

8. I conclude that Deputy Registrar McGrath’s decision was correct.  The application to review the decision refusing to dispense with security for costs is accordingly declined. 

9. Ms Tao is to pay the sum of $6,600 by way of security for costs by Friday 30 September.

Solicitors:
Price Baker Berridge, Auckland for Respondent