Turner v Davis - [2012] NZCA 576

IN THE COURT OF APPEAL OF NEW ZEALAND

CA360/2012
[2012] NZCA 576

BETWEEN RODERICK BRYAN TURNER
Appellant

AND ALLISTER JOHN DAVIS
First Respondent

AND CLARK BOYCE
Second Respondent

AND JAMES RAPLEY
Third Respondent

Hearing: 27 November 2012

Court: Randerson, Harrison and Stevens JJ

Counsel: Appellant in person
A Challis for First and Second Respondents
A J Nash for Third Respondent

Judgment: 7 December 2012 at 3:00pm

JUDGMENT OF THE COURT

AThe appeal is struck out on the application of the third respondent.
BThe appellant must pay one set of costs to the first and second respondents together and one set of costs to the third respondent as for a standard application to strike out together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

On 29 May 2012 the appellant Mr Turner filed an appeal against a decision of Whata J granting summary judgment in favour of the respondents.[1] In terms of r 35 of the Court of Appeal (Civil) Rules 2005, Mr Turner was required to pay security for costs by 27 June 2012. However the Registrar did not notify the parties of the amount of the security until 26 July 2012. On that date, security for costs was fixed at $11,760. The respondents are willing to accept for present purposes that the 20 working day period should run from the date the amount for security was notified. On that footing, Mr Turner was required to pay the security by 24 August 2012 but has not done so.
[1] Turner v Davis [2012] NZHC 841.
The third respondent, Mr Rapley, applies under r 37(1) of the Rules for an order striking out the appeal on the ground that security for costs has not been paid. Mr Turner had neither paid security for costs, nor applied under r 35(6) of the Rules for an order reducing the amount of security or dispensing with it. Mr Rapley further submits that the appeal has no merit and ought to be struck out as an abuse of process. The first and second respondents (Mr Davis and his law firm Clark Boyce) support Mr Rapley’s application.
On 20 November 2012 Mr Turner sought an adjournment of the application which was set down for hearing on 27 November 2012. The adjournment was declined by the Registrar on the ground that he had not paid the filing fee on the appeal and that, by virtue of r 7(3) of the Court of Appeal Fees Regulations 2001, he was not entitled to take any further step in the proceeding. Mr Turner’s prior application for a fee waiver had been declined and his application for a review of that decision dismissed by Wild J on 27 August 2012.
The application to strike out was due to be heard on 27 November 2012. Late in the afternoon immediately prior to the hearing date, Mr Turner requested the opportunity to appear at the hearing the following day by telephone. That request was declined by Harrison…

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 Turner v Davis

Details

AGLC: Turner v Davis [2012] NZCA 576
Case: [2012] NZCA 576
Decision Date: 7 December 2012

CaseChat Overview and Summary

Roderick Bryan Turner filed an appeal against the decision of Whata J, who granted summary judgment in favour of the respondents. The appeal was heard by the Court of Appeal of New Zealand, with Randerson, Harrison, and Stevens JJ presiding. The respondents argued that the appeal should be struck out due to Turner's failure to pay security for costs and the lack of merit in the appeal. Turner argued that the appeal had a realistic prospect of success because there were disputed issues of fact and law.

The Court found that Turner's appeal had no prospect of success, as the relevant issues of fact had already been determined against him in prior civil and criminal proceedings. Turner had not paid security for costs nor sought a dispensation from that obligation. The Court granted the third respondent's application to strike out the appeal, as Turner had not paid security for costs within the allowed time and the appeal had no realistic prospect of success.

The Court ordered that Turner must pay one set of costs to the first and second respondents together and one set of costs to the third respondent as for a standard application to strike out, together with usual disbursements. The appeal was ultimately struck out, and Turner's claims against the respondents were dismissed.

Orders