Clarke v Watts

IN THE COURT OF APPEAL OF NEW ZEALAND
CA588/2009
[2010] NZCA 322
BETWEENNEIL MARTIN CLARKE
Appellant

ANDCOREY DANIEL WATTS
Respondent

Hearing:20 July 2010

Court:Glazebrook, Randerson and Stevens JJ
Counsel:Appellant in Person (No appearance)
D G Dewar for Respondent

Judgment:27 July 2010 at 4.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is dismissed.
BThe appeal is struck out.
CCosts of $1,000 plus usual disbursements are awarded to the respondent.

____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]       On 7 September 2009 Ronald Young J ordered the release of monies held by the High Court to the solicitors for Mr Watts.[1] On 18 September 2009 Mr Clarke filed a document entitled “Appeal Against Monies Held by the High Court at Wellington” in which he gave notice that he was “applying for leave to appeal” to this Court against Ronald Young J’s order for the release of monies.
[1]Clarke v Watts HC Wellington CIV-2006-485-2461, 7 September 2009.
[2]       Mr Clarke applied for a dispensation with regard to security for costs which was refused by the Registrar. On 31 May 2010 Arnold J refused the application for a review of the Registrar’s decision.[2] Security has not been paid.
[2]Clarke v Watts [2010] NZCA 221 (Clarke v Watts (CA)). The full background to this matter was set out by Arnold J at [2]–[7].
[3]       The application today was an application for an extension of time to make an application for a fixture and file the case on appeal in the above matter. We note that this application was not served on the respondent and it turns out that the notice of appeal has never been served on the respondent either and therefore it appears that the appeal may not in fact have been properly brought.
[4]       Before the hearing of the application, Mr Clarke telephoned the Registry and informed the Registry that he would not be appearing at the hearing and that he may file a notice of abandonment. No such notice of abandonment was received before the hearing. Mr Clarke did not appear at the hearing. Despite being contacted by the Registry, no notice has been received since the hearing. On 22 July 2010 Mr Clark informed the Registry that he was not going to file a notice of abandonment.
Discussion
[5]       As security for costs has not been paid, the appeal, even if validly brought, is liable to be struck out. There has not even been any indication of any intention to pay security for costs. The application for an extension of time is thus misconceived.
[6]       As a precaution, we dismiss the application on the basis that the appeal is hopeless as noted by Arnold J in his decision refusing to waive security for costs.[3] Mr Clarke has not identified any errors in Ronald Young J’s decision and there are no arguable grounds of appeal. As Arnold J noted, the order to release the monies was a natural consequence of the High Court’s confirmation of the costs award in respect of which the monies had been paid into Court.
Result
[3]      Clarke v Watts (CA) at [16].
[7]       The application for an extension of time is dismissed. There has been no payment of security for costs on the appeal (if extant). It is struck out accordingly.
[8]       The respondent sought costs. As no notice of abandonment was received before the hearing, the respondent was obliged to attend the hearing. Costs of $1,000 plus usual disbursements are awarded to the respondent.
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Respondent.

In the case of Clarke v Watts, the appellant, Neil Martin Clarke, sought to appeal a decision of Ronald Young J, which ordered the release of certain monies held by the High Court to the solicitors for the respondent, Corey Daniel Watts. The primary focus of the appeal was the refusal of the Registrar to grant a dispensation with regard to security for costs, which was subsequently upheld by Arnold J on 31 May 2010. Mr Clarke filed a document on 18 September 2009, notifying the court of his intention to appeal against the release of monies held by the High Court. However, security for costs was not paid, and the appeal, if validly brought, was at risk of being struck out. This appeal was heard on 20 July 2010, and Mr Clarke did not appear, nor did he file a notice of abandonment. The central legal issues revolved around whether the appeal was validly brought and whether there were any arguable grounds to proceed with it.

The Court of Appeal found that the appeal was likely not properly brought, as the notice of appeal had not been served on the respondent, and the application for an extension of time was not served either. Furthermore, the Court noted that the appeal was hopeless, as there were no identified errors in Ronald Young J's decision and no arguable grounds for appeal. The Court was also concerned about the non-payment of security for costs, which would result in the appeal being struck out regardless of its validity. The Court concluded that the application for an extension of time was misconceived and dismissed it on the basis that the appeal was hopeless, as previously noted by Arnold J.

The Court of Appeal dismissed the application for an extension of time and struck out the appeal. The Court awarded costs of $1,000 plus usual disbursements to the respondent, Corey Daniel Watts, as the respondent was required to attend the hearing due to the absence of a notice of abandonment. The decision highlights the importance of timely and proper service of documents in the appeals process and the consequences of failing to meet security for costs requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established