WARDELL v ASB BANK LIMITED [2016] NZCA 275

WARDELL v ASB BANK LIMITED [2016] NZCA 275 [21 June 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA97/2015[2016] NZCA 275BETWEEN AMANDA JOSEPHINE WARDELLAppellantAND ASB BANK LIMITEDRespondentHearing: 16 June 2016Court: Ellen France P, Randerson and Winkelmann JJCounsel: Appellant in person with B Thow as McKenzie FriendM A Powell for RespondentJudgment: 21 June 2016 at 11:30 amJUDGMENT OF THE COURTA The application to pay security for costs by instalments is dismissed.B The sum of $5,880 for security for costs is to be paid by the appellant no later than 30 July 2016.C If the security is not paid in full by that date, the respondent may apply to dismiss the appeal. Any such application will be dealt with on the papers.D The appellant must pay to the respondent costs for a standard application with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Background[1] The appellant has appealed against a summary judgment entered against her in the High Court on 5 February 2015 for the sum of $362,009.51 together with interest and costs. Her appeal was brought out of time but she was granted an extension of time to appeal in a judgment of this Court delivered on 31 July 2015.1[2] The Registrar declined the appellant's application to dispense with securityfor costs on 10 November 2015 and directed that $5,880 be paid by 8 December2015. An application to review the Registrar's decision was dismissed by Cooper J on 5 April 2016.2[3] On 3 May 2016 Ms Wardell applied for an order that security for costs be set aside entirely or alternatively for an order that security for costs be reduced to 50 per cent of the standard amount for security and paid over a 12-month period. The application is opposed by the respondent.The grounds advanced by the appellant[4] Ms Wardell made wide-ranging submissions to the Court both in writing and during the hearing of the application. In essence she submitted that she had a meritorious case which ought to be heard. It would be unjust if she were denied a hearing given her limited financial resources. In support of this submission the appellant relied on alleged breaches of the New Zealand Bill of Rights Act 1990 and made wide-ranging allegations of money laundering, illegal asset theft and white collar crime which, she said, had led to the bankruptcy of her husband, Mr Brendan Thow, on the application of his creditors.Discussion[5] We see no basis to interfere with the Registrar's decision to require security for costs or to revisit Cooper J's decision confirming the Registrar's decision.Although the appellant continues to refer to a lack of financial resources, she has not1 Wardell v ASB Bank Ltd [2015] NZCA 344.2 Wardell v ASB Bank Ltd [2016] NZCA 89.put any further material before the Court on that topic beyond that which was provided earlier to the Registrar.[6] We are concerned that Ms Wardell has failed to advance her appeal despite the fact that it was filed more than 12 months ago and despite the directions we gave in our judgment of 31 July 2015. At that time, we noted that the appellant had not placed any affidavit evidence before the Court to support her proposed grounds of appeal. We also noted that the appellant would need to apply promptly for leave to file affidavits in this Court if she wished to pursue the appeal rather than take up theCourt's suggestion that she apply to the High Court to set aside the judgment entered against her by default. Nor has the appellant complied with her obligation to prepare and file a case on appeal in accordance with the rules of Court.[7] Ms Wardell informed the Court that she had not taken these steps due to lack of funds. When asked whether she intended to obtain legal advice she said she had no plans to do so at this stage. Rather, she informed the Court that, two days before the hearing, letters had been written to various Cabinet Ministers seeking a Commission of Inquiry into white collar fraud.[8] Despite the appellant's difficulties in obtaining legal advice, we are notsatisfied that the appellant has any valid grounds for her failure to pursue this appealwith reasonable diligence. A litigant's right to pursue an appeal is not an absoluteright. It is dependent upon compliance with the rules of Court which are designed to ensure that an appeal is pursued fairly for both parties. The respondent should not be put to the cost of opposing the appeal without security for costs being paid as directed. As Mr Powell pointed out, if the payment of security were deferred for 12 months as proposed by the appellant it would not be provided before the likely hearing date for the appeal and would not therefore serve its purpose.Result[9] The application to pay security for costs by instalments is dismissed.[10] The sum of $5,880 for security for costs is to be paid by the appellant no later than 30 July 2016.[11] If the security is not paid in full by that date, the respondent may apply to dismiss the appeal. Any such application will be dealt with on the papers.[12] The appellant must pay to the respondent costs for a standard application with usual disbursements.Solicitors:Bell Gully, Auckland for Respondent