King v Norfolk Nominees Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA536/2014
[2019] NZCA 494

BETWEEN	PAUL ANTHONY KING Appellant
AND	NORFOLK NOMINEES LIMITED Respondent

Court:	Kós P, Brown and Clifford JJ
Counsel:	Appellant in person B A Vautier for Respondent
Judgment: (On the papers)	16 October 2019 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is struck out.
BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

On 28 August 2014, Associate Judge Matthews adjudicated bankrupt the appellant, Paul Anthony King, on the application of the respondent, Norfolk Nominees Ltd.[1] On 24 September 2014, Mr King filed a notice of appeal in this Court, alleging the Judge made numerous errors of fact and law.[2]
[1]Norfolk Financial Management Ltd v King [2014] NZHC 2051.
[2]Mr King did not apply for a suspension of the adjudication and his bankruptcy is unaffected by this appeal.
Mr King applied for security for costs to be dispensed with. The Registrar declined that application, a decision upheld on review by Stevens J, who ordered Mr King to pay security no later than 20 March 2015.[3] Shortly before that date, Mr King applied for an extension of time to pay security for costs. Stevens J declined to grant an extension.[4]
[3]King v Norfolk Nominees Ltd [2015] NZCA 16.
[4]King v Norfolk Nominees Ltd CA536/2014, 20 April 2015 (Minute of Stevens J).
Security for costs was never paid. Nor was the appeal deemed abandoned, because in December 2014 — within three months of the appeal being brought, as required — Mr King filed the case on appeal and a memorandum requesting the allocation of a hearing date.[5]
[5]Court of Appeal (Civil) Rules 2005, r 43(1).
Without payment of security for costs, the Registrar could not allocate a hearing date.[6] The appeal therefore lay dormant for several years until, on 9 August 2019, Clifford J issued a minute warning Mr King that the Court intended to consider whether to strike out his appeal pursuant to r 44A of the Court of Appeal (Civil) Rules 2005 for failing to prosecute it with due diligence and dispatch. The parties were invited to file memoranda. Mr King filed a lengthy memorandum reiterating the merits of his appeal and blaming the Registrar for the delay. Mr Vautier, for the respondent, submitted that the appeal should be struck out.
[6]Rule 37(2).
Mr King’s criticism of the Registrar is misconceived: the inaction is due to the fact he did not pay security for costs when it fell due. He was given a full opportunity to do so. Four years have now passed and the appeal has seen no progress for far too long. We are satisfied that Mr King has failed to prosecute the appeal with due diligence and dispatch.[7]
[7]Rule 44A(1)(b).
The appeal is struck out.
There is no order as to costs.

Solicitors:
Glaister Ennor, Auckland for Respondent

CaseChat Overview and Summary

Paul Anthony King, the appellant, appealed against an Associate Judge's decision to declare him bankrupt on the application of Norfolk Nominees Limited, the respondent. The appeal was heard by the Court of Appeal of New Zealand, presided over by Kos P, Brown, and Clifford JJ. The primary issue before the court was whether the appellant had failed to prosecute the appeal with due diligence and dispatch, warranting its dismissal under Rule 44A of the Court of Appeal (Civil) Rules 2005. The appellant argued that the delay in hearing the appeal was due to the Registrar's inaction, but the court found that the appellant had not paid the required security for costs when it fell due, which led to the delay. Four years had passed since the appeal was filed, and it had seen no progress for an extended period. The court was satisfied that the appellant had indeed failed to prosecute the appeal with the necessary diligence.

The court noted that the appellant was given a full opportunity to pay the security for costs, but he did not do so, and subsequently, the Registrar could not allocate a hearing date. This inaction by the appellant led to the appeal lying dormant for several years. The court issued a warning to the appellant, inviting him to explain the delay. However, the appellant's response merely reiterated the merits of his appeal and blamed the Registrar for the delay. The respondent's counsel submitted that the appeal should be struck out due to the appellant's failure to prosecute it with due diligence and dispatch. The court agreed with the respondent's submission and found that the appellant had indeed failed to prosecute the appeal with the necessary diligence, leading to its dismissal. There was no order as to costs.

In conclusion, the Court of Appeal of New Zealand dismissed the appellant's appeal against the Associate Judge's decision to declare him bankrupt. The court found that the appellant had failed to prosecute the appeal with due diligence and dispatch, warranting its dismissal under Rule 44A of the Court of Appeal (Civil) Rules 2005. The primary reason for the delay in hearing the appeal was the appellant's failure to pay the required security for costs when it fell due. The court was satisfied that the appellant had not acted with the necessary diligence in prosecuting the appeal, leading to its dismissal. There was no order as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established