Reid v Cottle

[2012] NZCA 70

IN THE COURT OF APPEAL OF NEW ZEALAND

CA363/2011
[2012] NZCA 70

BETWEEN  JAMES ROBERT REID
Applicant

AND  SUZANNE LYNNE COTTLE
First Respondent

AND  COOPER RAPLEY LAWYERS
Second Respondent

Counsel:         Applicant in person
P J Reardon for Respondents

Judgment:      6 March 2012 at 4.30 p.m.

JUDGMENT OF ARNOLD J

The application for review of the Acting Registrar’s decision as to security for costs is declined.  Security for costs of $5,560.00 must be paid into Court within 20 working days of the date of this judgment. 

_______________________________________________________________

REASONS

Introduction

1. Mr Reid, purportedly as trustee of the Marangairoa Trust (the Trust),[1] filed an appeal in this Court on 14 June 2011 against a decision of Joseph Williams J striking out his claims against the respondents, Ms Cottle and Cooper Rapley Lawyers.[2]  The Judge held that the doctrine of res judicata applied, so that the claims were an abuse of process.  The struck out proceedings were effectively a sequel to the proceedings discussed in this Court’s decision in Barber v Cottle.[3]

   [1]I say “purportedly” because the Companies Office record annexed to Mr Reid’s memorandum of 4 July 2011 does not show Mr Reid as a trustee.  Only Mr David Barber is listed. 

   [2]      Reid v Cottle HC Palmerston North CIV-2010-454-582, 17 May 2011.

   [3]      Barber v Cottle [2010] NZCA 31.

2. Security for costs on the appeal was set at $5,560.  On 29 June 2011 Mr Reid applied for dispensation from the requirement to pay security.[4]  The respondents opposed the application.  In a letter dated 12 August 2011, the Acting Registrar declined to dispense with security.  Mr Reid now applies for a review of that decision.

The Acting Registrar’s Decision

[4]      Court of Appeal (Civil) Rules 2005, r 35(6)(c).

1. In Mr Reid’s application for waiver, he stated that the Trust, while not impecunious, had “limited resources”.  The Acting Registrar noted that no financial records had been filed in support of that claim and that the respondents disputed the fact that Mr Reid was a trustee of the Trust.  Further, the Acting Registrar rejected Mr Reid’s claim that the appeal raised matters of genuine public interest.  She concluded that the provision of security was necessary in order to protect the respondents for costs should the appeal be unsuccessful.  Security remained set at $5,560, to be paid into Court within 20 working days.

2. Mr Reid applied for a review of the Acting Registrar’s decision on 29 August 2011, just outside the 10 working day period provided for in the Court of Appeal (Civil) Rules 2005.[5]  Despite that, I propose to consider the application for review on its merits.

Security for Costs - General Principles

[5]      Rule 7(3).

1. In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[6]  An appellant may apply to the Registrar for a waiver of security within 20 days of filing the appeal[7] and the Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[8]

   [6]Rule 35(2).

   [7]Rule 35(3) and (6).

   [8]Rule 35(6).

2. Security for costs will be waived where it is in the interests of justice to do so.  There must be some exceptional circumstance to justify waiver.[9]  The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for 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.[10]  Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.[11]

Discussion

[9]Fava v Zaghloul [2007] NZCA 498 at [9].

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

[11]Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].

1. I consider that the Acting Registrar was right to refuse to dispense with the requirement to pay security for costs in the present case.

2. First, there is some doubt as to Mr Reid’s standing to bring the appeal on behalf of the Trust.  Joseph Williams J did not make any findings as to that but rather assumed that Mr Reid did have standing.

3. Second, Mr Reid does not allege that the Trust is impecunious, although he says it has limited resources and has suffered losses as a result of actions of the respondents. 

4. Third, Mr Reid says that the appeal raises questions of law which are of significant interest to the public or a significant section of the public.  This seems to be the principal ground for the application for dispensation.  However, the case involves the application of developed principles of law to a particular fact situation.  As a consequence, it is not of significant public interest.

5. Finally, although this must be a tentative view, the appeal appears to have little prospect of success.  The struck out proceeding seeks to relitigate findings made in an earlier proceeding in the High Court[12] in respect of which there was an attempted appeal to this Court.[13]  To the extent that the struck out proceeding attempts to raise anything new, there are likely to be limitation issues.

   [12]      Barber v Cottle HC Palmerston North CIV-2004-454-756, 13 March 2008.

   [13]      Barber v Cottle [2010] NZLR 31.

6. In the result, then, Mr Reid has not pointed to any exceptional circumstances that justify dispensing with the requirement to pay security for costs.

Decision

1. The application for review of the Acting Registrar’s decision as to security for costs is declined.  Security for costs of $5,560.00 must be paid into Court within 20 working days of the date of this judgment.  There is no order for costs on this application.

Solicitors:
Cooper Rapley, Palmerston North for Respondents