White v Lynch - [2015] NZCA 376

IN THE COURT OF APPEAL OF NEW ZEALAND

CA281/2015
[2015] NZCA 376

BETWEEN

AMANDA ADELE WHITE
First Appellant

ANNE LEOLINE EMILY FREEMAN
Second Appellant

AND

CHRISTOPHER MAURICE LYNCH
First Respondent

STUART GORDON SPENCE
Second Respondent

Counsel:

Appellants in person
P J Wright for Respondents

Judgment:

(On the papers)

17 August 2015 at 10:00 am

JUDGMENT OF RANDERSON J

AThe application for review of the Registrar’s decision declining to dispense with security for costs is dismissed.
BThe appellants must pay to the Registrar security of $5,880.00 within 20 working days of the date of this judgment.

____________________________________________________________________

REASONS

Introduction

The appellants filed an appeal on 20 May 2015 seeking to appeal a decision of Faire J on 14 May 2015.[1] Security for costs on the appeal was set on 20 May at $5,880. On 7 July 2015, the appellants applied to have security dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005 (the Rules). The application was out of time by 14 working days.
[1]White v Lynch [2015] NZHC 1020.
On the same day, the Registrar dismissed that application on the basis that she had no discretion to accept or consider an application for dispensation filed out of time. On 10 July 2015, the appellant applied to review that decision. I have considered the application for review under r 7(2) of the Rules and s 61A(3) of the Judicature Act 1908.

Background

The first appellant Ms White and the second respondent Mr Spence were in a de facto relationship which came to an end and has resulted in litigation in various courts. The dispute included claims made in respect of a family trust known as the DCT Trust. The trustees of that trust were Ms White, her mother (the second appellant Ms Freeman) and a lawyer (the first respondent Mr Lynch). Priestley J determined the dispute between the parties by a judgment delivered on 19 June 2013.[2] He found that sums totalling $224,480.48 had been advanced by Mr Spence to the DCT Trust. Priestley J rejected a contention by Ms White and Ms Freeman that there was a profit-sharing arrangement between Ms White and Mr Spence. The Judge found the advances were loans by Mr Spence. After deducting repayments there was a balance owing of $130,158.00. This sum was found to be due to Mr Lynch who had taken an assignment of the debt on Mr Spence.
[2]Spence v Lynch [2013] NZHC 1478.
The result was that judgment was entered against Ms White and Ms Freeman in favour of Mr Lynch for the debt of $130,158.00. In a separate judgment, Priestley J made a substantial costs order against Ms White and Ms Freeman.[3]
[3]Spence v White [2013] NZHC 2668.
On 17 July 2013 an appeal was filed to this Court against the decision of Priestley J.[4] This Court delivered a judgment relating to three interlocutory issues: an application for extension of time under r 43(2) of the Rules; an application…

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 [2015] NZCA 376
Case: [2015] NZCA 376
Decision Date: 17 August 2015 at 10:00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for review brought by Amanda Adele White and Anne Leoline Emily Freeman, seeking to appeal a decision by Faire J declining to dispense with security for costs. The respondents, Christopher Maurice Lynch and Stuart Gordon Spence, opposed the application. The appellants sought to appeal a decision by Priestley J that sums totalling $224,480.48 had been advanced by Mr Spence to a family trust, the DCT Trust, and that there was no profit-sharing arrangement between Ms White and Mr Spence. The appellants argued that the requirement for security for costs would prohibit them from pursuing the appeal, and they submitted that they had a strong arguable case and relied on s 27(1) of the New Zealand Bill of Rights Act 1990 for their right to access justice. The court considered the legal issues regarding the time limit for applying for a dispensation and whether the time to apply for dispensation should be extended.

The court found that the application for a dispensation was out of time and that the Registrar was correct not to entertain the application and to decline to consider it. The court noted that the time limit for applying for a dispensation under r 35(7) of the Rules is 20 working days after the notice of appeal has been filed in the Registry, and that strict enforcement of the time limit is necessary to deal with security promptly once an appeal is filed. The court also found that the appellants had not filed a proper application for legal aid at the time the appeal was brought, and that the Registrar was correct to consider that r 36 was of no relevance. The court held that the appeal brought by the appellants was not reasonably arguable, and that it would not be right to require the respondents to defend the judgment under appeal without the usual protection of security for costs. Therefore, the application for review of the Registrar’s decision declining to dispense with security for costs was dismissed. The appellants must pay to the Registrar security of $5,880.00 within 20 working days of the date of this judgment.

Orders