White v Lynch - [2016] NZCA 78

IN THE COURT OF APPEAL OF NEW ZEALAND

CA740/2015
[2016] NZCA 78

BETWEEN

AMANDA ADELE WHITE
First Appellant

ANNE LEOLINE EMILY FREEMAN
Second Appellant

AND

CHRISTOPHER MAURICE LYNCH
First Respondent

STUART GORDON SPENCE
Second Respondent

Judgment:

(On the papers)

22 March 2016 at 3 pm

JUDGMENT OF WILD J: REVIEW OF REGISTRAR’S DECISION

The Deputy Registrar’s decision declining to dispense with security for the costs of this appeal is upheld.

____________________________________________________________________

REASONS

On 16 March the appellants, pursuant to r 7(2) of the Court of Appeal (Civil) Rules 2005, sought a review of a decision by a Deputy Registrar.
That decision is dated 15 March 2016. It was made by Deputy Registrar Ms Jacey McGrath. The decision was to decline the appellant’s application to dispense with security for the costs of this appeal. The Deputy Registrar directed that security of $6,600 was to be paid by 14 April 2016.
For the purposes of this review I have read:
(a)The appellant’s application.
(b)Deputy Registrar McGrath’s decision.
(c)The judgment of Faire J delivered on 15 December 2015 which is the subject of this appeal.[1]
(d)The earlier judgment of Faire J, delivered on 14 May 2015, in particular paragraphs [52] to [74].[2]
(e)This Court’s judgment of 2 July 2014 in White v Spence.[3]
[1]White v Lynch [2015] NZHC 3202.
[2]White v Lynch [2015] NZHC 1020.
[3]White v Spence [2014] NZCA 298.
I have also re-read the minute and directions I gave in this appeal on 23 February 2016.[4]
[4]White v Lynch CA740/2015, 23 February 2016 (Minute and Directions of Wild J).
Having done all of that, I am in no doubt that Deputy Registrar McGrath’s decision is correct, because this is not an appeal that would sensibly be pursued by solvent appellants.
Underlying this application, and the appeal itself, is the appellants’ view that the respondents have perpetrated a fraud on them by deliberately withholding vital evidential documents, namely Mr Spence’s bank statements.
The appellants hold fast to this view notwithstanding the findings made by Priestley J in his substantive judgment of 19 June 2013,[5] the conclusion reached by Faire J in his judgment of 14 May 2015,[6] and this Court’s views expressed in its judgment of 2 July 2014 as to the 1,000 pages approximately of additional material the appellants sought to adduce in support of their appeal against Priestley J’s substantive judgment of 19 June 2013,[7] and also their attempted appeal against Priestley J’s costs judgment of 11 October 2013.[8]
[5]Spence v Lynch [2013] NZHC 1478.
[6]White v Lynch, above n 2.
[7]White v Spence, above n 3, at [13]–[21].
[8]Spence v Lynch [2013] NZHC 2668. An extension of time to appeal was granted in White v Spence, above n 3, at [24] to appeal that costs decision but the appeal against Priestley J’s decisions (CA510/2013) was abandoned on 28 January 2016.
It is apparent that the appellants resolutely refuse to accept…

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 White v Lynch

Details

AGLC: White v Lynch [2016] NZCA 78
Case: [2016] NZCA 78
Decision Date: 22 March 2016 at 3 pm

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Amanda Adele White and Anne Leoline Emily Freeman appealed a decision by a Deputy Registrar who declined to dispense with security for the costs of the appeal against Christopher Maurice Lynch and Stuart Gordon Spence. This appeal arose from a larger litigation involving claims of fraud and the withholding of bank statements. The core issue before the Court of Appeal was whether the Deputy Registrar's decision to require security for the appeal costs was correct. Specifically, the court needed to determine if the appeal had any merit and if it was an abuse of process to require security for costs.

The Court of Appeal, led by Wild J, upheld the Deputy Registrar's decision. Wild J noted that the appellants' appeal was based on an unfounded belief that they had been defrauded by the respondents, a claim that had already been thoroughly examined and rejected in previous judgments. The court found that the appellants had lost objectivity and had become obsessed with their belief in the fraud, despite the clear findings against it. Wild J endorsed the Deputy Registrar's assessment that the appeal lacked merit and had no realistic prospect of success. The court further held that the respondents should not be burdened with the costs of an appeal that had no chance of prevailing. Consequently, the court upheld the requirement for the appellants to provide security for the appeal costs.

Orders