| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA97/2015 [2016] NZCA 89 |
| BETWEEN | AMANDA JOSEPHINE WARDELL |
| AND | ASB BANK LIMITED |
| Counsel: | Appellant in person |
Judgment: (On the papers) | 5 April 2016 at 11.30 am |
JUDGMENT OF COOPER J
(Review of Registrar’s decision)
The application to review the Registrar’s decision declining to dispense with security for costs is dismissed.
____________________________________________________________________
REASONS
The appellant, Ms Wardell, seeks to review the Registrar’s decision of 10 November 2015 declining an application under r 35(6) of the Court of Appeal (Civil) Rules 2005 to dispense with security for the costs of an appeal. Her application is opposed by the respondent, ASB Bank Limited (the ASB).
As a preliminary matter I record that in written material she has filed, Ms Wardell has asked for the review to be undertaken by three Judges of this Court. However, the process envisaged by r 7(2) is for the review to be undertaken by a single Judge.
The appeal is against a summary judgment entered on 5 February 2015 by Associate Judge Osborne in the sum of $362,009.51 together with interest and costs.[1] That judgment was entered after Ms Wardell failed to appear at the first call of the summary judgment application filed against her by the ASB. The claim was for sums allegedly owing on loans secured by a mortgage registered over a property in Ms Wardell’s name.
[1]ASB Bank Ltd v Wardell [2015] NZHC 108 at [2].
There was an issue as to whether the appeal had been properly brought. Ms Wardell had filed her appeal within time, but failed to serve it on the ASB or its solicitors. On 31 July 2015, over the ASB’s opposition, this Court delivered a judgment extending the time for appealing, noting that Ms Wardell had promptly served a copy of the notice of appeal when the matter was brought to her attention, and there had been no prejudice caused to the ASB.[2]
The Court also briefly referred to the merits of the appeal, recording its view that there might be arguable grounds to resist “at least the quantum” of the judgment entered against Ms Wardell.[3] However, it accepted the submission of Mr Moffatt, counsel for the ASB, that Ms Wardell had not placed any affidavit evidence before the Court to support her proposed grounds of appeal.[4] The Court further observed that she would need to apply promptly for leave to file affidavits in this Court if she wished to pursue the appeal[5] while noting there was “considerable merit” in the suggestion made by Mr Moffatt that the better course would be for her to file an application in the High Court to set aside the judgment entered against her by default.[6]
[3]At [14].
[4]At [14].
[5]At [16].
[6]At [17].
Subsequently, on 24 August 2015, Ellen France P directed the Registrar to again advise Ms Wardell that she would need to file and serve affidavits…
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- Case
- [2016] NZCA 89
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the Registrar was correct in declining to dispense with the requirement of security for costs. The court had to consider whether the Registrar was correct in deciding that the information provided by Wardell was insufficient to ascertain her true financial position and whether the appeal was one that would be sensibly pursued by a solvent litigant.
The Court of Appeal agreed with the Registrar that the information provided by Wardell was insufficient to ascertain her true financial position. The Court held that impecuniosity of itself does not warrant an order dispensing with security. The Court noted that the discretion to dispense with security should be exercised so as to preserve access to the Court of Appeal by an impecunious appellant whose appeal is one that a solvent appellant would reasonably wish to prosecute. The Court held that there was no basis upon which it could properly reach a decision different to that made by the Registrar. The application to review the Registrar’s decision declining to dispense with security for costs was dismissed.
The Court of Appeal dismissed the application to review the Registrar’s decision declining to dispense with security for costs.
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