Liguori v Bartoli

[2011] NZCA 315

IN THE COURT OF APPEAL OF NEW ZEALAND

CA659/2010
[2011] NZCA 315

BETWEEN  ALFONSO LIGUORI
Applicant

AND  FRANCESCO BARTOLI
Respondent

Counsel:         Applicant in person
G Bogiatto for Respondent

Judgment:      8 July 2011 at 2.30 pm

JUDGMENT OF ARNOLD J

The application to review the Acting Registrar’s decision refusing to dispense with security for costs is allowed to the extent that the amount of security required to be paid is reduced to $2,500.  This is to be paid by Friday 29 July 2011.

REASONS

Background

1. The appellant, Mr Liguori, who is insolvent, has filed an appeal against a decision of Associate Judge Doogue refusing to approve a compromise that he had entered into with all but one of his creditors.[1]  In conjunction with his appeal, Mr Liguori applied for a dispensation from the obligation to pay security for costs. 

   [1]      Liguori v Bartoli HC Auckland CIV-2010-404-2668, 6 September 2010.

2. In a letter dated 20 May 2011, the Acting Registrar declined Mr Liguori’s application, apparently on the basis that impecuniosity alone is not a ground for dispensing with security and there were no other circumstances sufficient to justify dispensation.  I say “apparently” because the Acting Registrar’s letter is not clear as to the precise basis for her refusal.  Mr Liguori now seeks a review of the Registrar’s decision. 

3. Mr Liguori’s application for approval of a compromise was opposed by one creditor, the respondent, Mr Bartoli, who is represented by Mr Bogiatto.  The respondent also opposed Mr Liguori’s application for dispensation from the requirement to pay security for costs.

Submissions

1. In support of his application for a dispensation, Mr Liguori noted that he is 68 years of age and without any significant means.  Indeed, from the material provided, it seems that Mr Liguori’s financial position is parlous.  He says that he should not be deprived of the chance to make some reparation to his creditors, who are generally supportive of him, and pursuing the appeal would allow him to achieve that.

2. In opposing the application, Mr Bogiatto submitted that Mr Liguori had no standing to bring the appeal as the application for approval of the compromise was brought in Mr Liguori’s name by his Provisional Trustee, Mr Noyce.  In addition, Mr Bogiatto submitted that the appeal did not raise any novel or important issue, nor did it engage the public interest.  Mr Bogiatto noted that impecuniosity alone does not justify a dispensation.

Discussion

1. The general position is that an appellant must provide security for costs in order to protect the respondent should the appeal fail.  As Mr Bogiatto submitted, impecuniosity alone is not a sufficient reason to dispense with security, although it may justify a reduction in the amount of security required.[2]  Security for costs will be waived where it is in the interests of justice to do so.  Generally, exceptional circumstances are required.[3]  The appellant must honestly intend to pursue the appeal and the appeal must be arguable as respondents should not face the threat of hopeless appeals without the provision of security.  The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.[4]

   [2]      Fava v Zaghoul [2007] NZCA 498 at [9].

   [3] Ibid.

   [4]      Creser v Official Assignee CA196/05, 12 June 2006 at [29].

2. Turning to the present case, I agree with the Acting Registrar that it is not one where the requirement to pay security should be dispensed with in its entirety.  Clearly Mr Liguori has limited financial resources available to him.  That said, however, his compromise depended upon his receiving substantial financial support from others.  Further, while I have no doubt that Mr Liguori is genuine in wishing to pursue his appeal, it does not raise any novel or significant issue, nor does it engage the public interest.  Finally, having perused the judgment under appeal and the grounds of appeal, I consider that the appeal will not be an easy one to argue although I could not fairly characterise it as hopeless on the material available to me.  (I make no comment on Mr Bogiatto’s standing argument.)

3. While I agree with the Acting Registrar that the requirement to provide security should not be dispensed with entirely, I consider that this is a case in which the amount required should be reduced.  This is not an aspect to which the Acting Registrar appears to have given any consideration, but a reduction in the amount required is often appropriate to reflect the appellant’s lack of financial means.  Accordingly, I allow Mr Liguori’s application for review of the Acting Registrar’s decision to the extent that the amount of security required is reduced from $5,560 to $2,500. 

4. I note that this appeal has a fixture on 15 August 2011.  Mr Liguori is to provide security for costs in the amount of $2,500 by Friday 29 July 2011.

Solicitors:
George Bogiatto, Auckland for Respondent