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

1. 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.

2. 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. 

3. 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.

4. 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).

5. 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.

6. 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.

7. 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.

8. It is apparent that the appellants resolutely refuse to accept that their view that they have been defrauded by the respondents is unfounded, and that no amount of judicial consideration and reconsideration will dissuade them.  I sense that the appellants have become obsessed with their conviction that they have been defrauded.  They have lost any objectivity or balance, not helped by the fact that, latterly, they have not had the advantage of objective professional advice and representation.

9. I am unable to fault Deputy Registrar McGrath’s assessment of the factors relevant to an application to dispense with security for costs.  In particular, I endorse her view that this appeal lacks merit.  Indeed, in my view it has no realistic prospect of success.  That is because it is essentially a further attempt to substantiate the appellants’ belief that they have been defrauded and to have this Court look at Mr Spence’s bank statements, something this Court made clear in its 2 July 2014 judgment that it was not prepared to do.

10. In those circumstances, Deputy Registrar McGrath was correct to decline to dispense with security.  The respondents should not be required to respond to an hopeless appeal brought by bankrupt appellants without security for their costs.

11. In the result, having reviewed Deputy Registrar McGrath’s decision, I uphold it.  Accordingly, security of $6,600 is to be paid into Court by 14 April 2016.