Reid v Her Majestys New Zealand Government

[2010] NZCA 250

IN THE COURT OF APPEAL OF NEW ZEALAND

CA345/2008
[2010] NZCA 250

BETWEENJAMES ROBERT REID

Applicant

ANDHER MAJESTY'S NEW ZEALAND GOVERNMENT

First Respondent

ANDTARARUA DISTRICT COUNCIL

Second Respondent

Court:O'Regan, Arnold and Baragwanath JJ

Counsel:Applicant in person

J A L Oliver for First Respondent
V T Bruton for Second Respondent

Judgment:14 June 2010 at 3.30pm

JUDGMENT OF THE COURT

The appeal is struck out.

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REASONS OF THE COURT

(Given by O’Regan J)

[1]        On 16 February 2010 we declined an application by the second respondent, the Tararua District Council to strike out the applicant’s appeal because he had failed to pay the security for costs.[1]  We gave our reasons on 23 February 2010.  However, we awarded indemnity costs against the applicant in favour of both the Crown and the Tararua District Council.  We also made an unless order in this form:

If the costs are not paid by the date specified in the Judgment of the Court, the appeal will be struck out.

[1]      Reid v Her Majesty’s New Zealand Government [2010] NZCA 11.

[2]        The date specified in the Judgment of the Court was “within 30 days after being notified by this Court of the amount payable”.  The Court issued a minute on 1 March 2010 setting out the amount payable to both the Tararua District Council ($7,509.10 (excluding GST) and to the Crown ($2,400)).  In that minute we said:

We direct that Mr Reid must pay $7,509.10 to the Tararua District Council and $2,400 to the Crown Law Office on behalf of the Crown by 1 April 2010.  Payment should be made by bank cheque or otherwise in cleared funds.  If Mr Reid fails to make those payments on or before 1 April 2010, the appeal will be struck out.  In that event Mr Reid will nevertheless remain liable to pay the above amounts to the respondents.

[3]        On 20 April 2010 counsel for the Tararua District Council, Ms Bruton, filed a memorandum in which she informed the Court that the costs and disbursements of $7,509.10 had not been paid to the Tararua District Council by 1 April, as required by the Court.  On behalf of the Council she therefore sought an order that the appeal be struck out and submitted an order for sealing.  Unfortunately that memorandum was mislaid and has only now been drawn to the attention of the Court.  In view of the breach of the “unless” order, we order that the appeal be struck out.

Solicitors:

Crown Law Office, Wellington for First Respondent

Brookfields, Auckland for Second Respondent