Wilfred v Lexington Legal Limited
[2019] NZCA 594
•28 November 2019 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA31/2017 [2019] NZCA 594 |
| BETWEEN | HARMON LYNN WILFRED |
| AND | LEXINGTON LEGAL LIMITED |
| Court: | Kós P, Brown and Clifford JJ |
Counsel: | Appellant in person |
Judgment: | 28 November 2019 at 11 am |
JUDGMENT OF THE COURT
AThe appeal is struck out.
BThere is no order as to costs.
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REASONS OF THE COURT
(Given by Clifford J)
On 15 December 2016, Harmon Lynn Wilfred was adjudicated bankrupt by Associate Judge Matthews on the application of Lexington Legal Ltd.[1] On 26 January 2017, Mr Wilfred appealed that adjudication to this Court on the basis that the Judge erred in failing to exercise his discretion to halt the application for adjudication.[2]
[1]Wilfred v Lexington Legal Ltd HC Christchurch CIV-2016-409-335, 15 December 2016.
[2]Insolvency Act 2006, s 38. We note that Mr Wilfred did not apply for a suspension of the adjudication and his bankruptcy is therefore unaffected by this appeal.
Mr Wilfred applied for security for costs to be dispensed with. The Deputy Registrar declined that application, a decision upheld on review by Harrison J.[3] Mr Wilfred was ordered to pay security by 17 May 2017. He did not do so.
[3]Wilfred v Lexington Legal Ltd [2017] NZCA 158.
An appeal is deemed abandoned under r 43 of the Court of Appeal (Civil) Rules 2005 if an appellant does not file a case on appeal and apply for a hearing date within three months of bringing the appeal. Mr Wilfred filed his case on appeal in April 2017 and was granted a waiver of the fee to schedule the hearing date at that time. Unfortunately, on a closer inspection of the file, it is not clear that Mr Wilfred then went on to formally apply for the allocation of a hearing date in terms of r 38. It would therefore seem that the appeal ought to have been deemed abandoned by the Registrar at some point in 2017. For the purposes of this judgment, however, we are prepared to assume Mr Wilfred’s appeal remains on foot.
Following Harrison J’s judgment on security for costs, the appeal essentially lay dormant for two years until, on 9 August 2019, Clifford J issued a minute warning Mr Wilfred that the Court intended to consider whether to strike out his appeal pursuant to r 44A for failing to prosecute it with due diligence and dispatch. The parties were invited to file submissions. In a memorandum, Mr Wilfred noted that the respondent entered liquidation in May 2017 and was removed from the Companies Register approximately one year later. He raised the possibility that security for costs might no longer be required and sought to continue the appeal. No submissions were filed for Lexington Legal.
We are satisfied that Mr Wilfred has not prosecuted the appeal with due diligence and dispatch.[4] The issue of security for costs was fully litigated in 2017 and we do not think events in the years since challenge the substantive correctness of Harrison J’s determination, made at that point, that security for costs ought to be paid. Appellants required to pay security are not entitled to sit on their hands in the hope that the position will eventually change. In any event, if the liquidation or deregistration of the respondent did in fact alter the position, Mr Wilfred should have taken steps when those events occurred. Well over a year has passed without him doing so and we are not prepared to reopen the issue.
[4]Court of Appeal (Civil) Rules 2005, r 44A(1)(b).
The appeal is struck out.
There is no order as to costs.
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