Wardell v ASB Bank Limited - [2016] NZCA 89

IN THE COURT OF APPEAL OF NEW ZEALAND

CA97/2015
[2016] NZCA 89

BETWEEN	AMANDA JOSEPHINE WARDELL Appellant
AND	ASB BANK LIMITED Respondent

Counsel:

Appellant in person
NFD Moffatt for Respondent

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]
[2]Wardell v ASB Bank Ltd [2015] NZCA 344.
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…

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 89
Decision Date: 5 April 2016 at 11.30 am

CaseChat Overview and Summary

Amanda Josephine Wardell has appealed against the Court of Appeal’s decision to decline her application to dispense with the requirement of security for costs. Wardell had appealed a summary judgment entered against her in the High Court. The judgment was for $362,009.51 plus interest and costs, awarded against Wardell after she failed to appear at a summary judgment hearing in relation to loans secured by a mortgage registered in her name. The appeal was allowed but Wardell did not serve the appeal papers on the ASB Bank Limited (ASB). The ASB opposed the appeal and argued it was not properly served. The Court of Appeal extended the time for appealing but noted that Wardell had not provided any affidavit evidence to support her proposed grounds of appeal. The Court suggested that she should file an application in the High Court to set aside the judgment entered against her by default. The Registrar declined to dispense with security for costs because Wardell had not provided sufficient information to ascertain her true financial position and she had not filed any affidavits in support of her appeal. Wardell sought a review of the Registrar’s decision.

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.

Orders