Tito v Booth
[2021] NZCA 2
•3 February 2021 at 9.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA377/2020 [2021] NZCA 2 |
| BETWEEN | KEVIN JOHN TITO |
| AND | RICHARD CHARLES BOOTH AND SHARRON ANDREA BOOTH |
| Counsel: | Appellant in person |
Judgment: | 3 February 2021 at 9.00 am |
JUDGMENT OF COLLINS J
(Review of Deputy Registrar’s decision)
The application for review of the Deputy Registrar’s decision is declined.
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REASONS
Mr Tito seeks a review of the Deputy Registrar’s decision on security for costs payable in relation to his appeal.[1]
[1]Court of Appeal (Civil) Rules 2005, r 5A(3).
Mr Tito’s appeal concerns a dispute over Mangakahia 2B2 No 2A1A (the whenua). Since 1995, the respondents, Mr and Mrs Booth, have leased the whenua from the Ahu Whenua Trust, of which Mr Tito is a trustee. In late 2019, Mr Tito acted in breach of an injunction issued by the Māori Land Court in respect of the whenua.[2] The injunction was transferred to the High Court for enforcement pursuant to s 85 of Te Ture Whenua Māori Act 1993. Brewer J issued a judgment on 21 May 2020 imposing a fine of $2,000 on Mr Tito plus costs.[3]
[2]The injunction was issued pursuant to s 19(1)(b) of the Te Ture Whenua Māori Act 1993.
[3]Booth v Tito [2020] NZHC 1071.
On 13 July 2020, Mr Tito filed an appeal in this Court against Brewer J’s decision.[4] Security for costs was set at $7,060.[5] Mr Tito applied for dispensation of this amount on the basis of impecuniosity. The Deputy Registrar declined his application, concluding that without further information about Mr Tito’s financial position she could not dispense with security for costs. Additionally, the Deputy Registrar considered that an agreement between the parties that Mr Tito would set aside funds to meet any legal costs arising from the dispute was not sufficient to supplant the protection afforded to the respondents by security for costs. There were no other reasons, such as public importance or merit to the appeal, to otherwise justify dispensing with security.
[4]This was out of time, but the respondents consented to an extension of time: see Tito v Booth CA377/2020, 24 July 2020 (Minute of Brown J).
[5]Court of Appeal (Civil) Rules, r 35(5).
Mr Tito seeks a review of this decision. He has not supplied the Court with any further submissions or material about his financial position so I undertake this review by examining the same materials that were before the Deputy Registrar.
The Registrar may dispense with security for costs if they are satisfied that the circumstances warrant it.[6] The Supreme Court in Reekie v Attorney-General identified two grounds upon which security for costs could be dispensed with:[7]
(a)where costs are unlikely to be ordered against the appellant; or
(b)where the appellant either cannot pay or will suffer severe hardship if payment is required.
[6]Rule 35(6)(c).
[7]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [19].
Mr Tito advances his application on the second of these grounds. However, as observed by the Deputy Registrar, without further evidence of Mr Tito’s financial position it is difficult to make a finding of impecuniosity, let alone one which would justify allowing an appeal to proceed without the protection of security for costs.[8]
[8]At [20]–[21].
The arrangement entered into by the parties whereby Mr Tito “ringfences” an amount to cover any potential litigation costs and damages arising from the breach does not affect this conclusion.
The application for review of the Deputy Registrar’s decision is declined.
Security for costs of $7,060 is payable by 15 February 2021.
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