McMAHON v THE ROYAL NEW ZEALAND FOUNDATION OF THE BLIND INCORPORATED [2021] NZHC 648

McMAHON v THE ROYAL NEW ZEALAND FOUNDATION OF THE BLIND INCORPORATED [2021]NZHC 648 [29 March 2021]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV 2020-488-112[2021] NZHC 648UNDER Section 119 of the Residential Tenacies Act1986IN THE MATTER OF The Judgments of the District Court atWhangarei dated 14 October 2020 and 30November 2020BETWEEN ANGELINE CLARK McMAHONAppellantAND THE ROYAL NEW ZEALANDFOUNDATION OF THE BLINDINCORPORATEDRespondentTeleconference: 29 March 2021Counsel: G W Thwaite for the AppellantN Hartwell for the RespondentJudgment: 29 March 2021JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 29 March 2021 at 12:00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy Registrar[1] The appellant, Ms McMahon, applies for an order that she is not required topay security for costs on her appeal.[2] To give context to Ms McMahon's application, I first set out the backgroundto Ms McMahon's appeal. I then note an interlocutory application that the respondenthas brought in this appeal.Background to Ms McMahon's appeal[3] Ms McMahon occupied a dwelling at 145 Tavinor Road, Otaika, Whangārei.The dwelling was owned by a Mr Rowles. Ms McMahon originally paid rent, butstopped payment in October 2016.[4] Mr Rowles died in February 2017. His unsigned will left his entire estate tothe New Zealand Guide Dogs for the Blind Association. On 23 October 2018 the HighCourt made an order declaring Mr Rowles' unsigned will a valid will. No executorwas named in the will. On 24 January 2019 the respondent, the Royal New ZealandFoundation of the Blind (the Foundation), was granted letters of administration.[5] Ms McMahon remained in occupation of the dwelling without paying any rentto the Foundation. On 5 July 2019 the Foundation instructed Henderson Reeves,solicitors, to terminate Ms McMahon's tenancy. On 23 July 2019 notice was given toher to terminate by 31 October 2019. Ms McMahon refused to vacate.[6] On 14 November 2019 Henderson Reeves, as agent for the Foundation, filedan application in the Tenancy Tribunal for an order for possession.[7] In a decision of the Tenancy Tribunal dated 16 March 2020, the Adjudicator,Mr Blake, made orders granting possession of the premises to Henderson Reeves.[8] Ms McMahon did not appeal the Adjudicator's decision. But, four monthslater, on 13 July 2020, Ms McMahon applied to the Tenancy Tribunal for a rehearing,an extension of time for filing the application (which should ordinarily have been filedwithin five working days), and a stay of the enforcement order.[9] The application for a rehearing was heard in September 2020 by Mr Blake. MrBlake dismissed Ms McMahon's application.[10] Ms McMahon appealed to the District Court against that decision. MsMcMahon's appeal was heard by Judge D J McDonald. The Judge noted that theTribunal's power to order a rehearing arises under s 105 of the Residential TenanciesAct 1986. This says that the Tribunal has the power to order a rehearing on the groundthat "a substantial wrong or miscarriage of justice has or may have occurred or is likelyto occur". The Judge said, correctly, that s 105 sets a high standard. The Judge foundthat it was not met. He dismissed Ms McMahon's appeal.[11] It is Judge McDonald's decision from which Ms McMahon appeals. She is,therefore, appealing against a decision dismissing her appeal from Mr Blake's refusalof her application for a rehearing. Under s 119 of the Residential Tenancies Act, herappeal is confined to questions of law.The Foundation applies for an order under s 166 Senior Courts Act 2016[12] The Foundation has, in this appeal, applied for an order under s 166 of theSenior Courts Act 2016 restricting Ms McMahon from commencing or continuingcivil proceedings on matters relating to the property at 145 Tavinor Road, or relatingto the estate of Mr Rowles. At the first case management conference for this appeal,Brewer J noted that the application was brought on the basis that Ms McMahon is avexatious litigant. His Honour directed that the application be determined in the samehearing as the appeal.[13] The hearing of Ms McMahon's appeal, and of the Foundation's application, isscheduled for 21 April 2021. One day has been allocated.Waiver of the requirement to pay security for costs[14] Appellants are normally required to pay security for costs. Security for costscan be waived where it is in the interests of justice to do so: rule 20.13(2). Exceptionalcircumstances are needed to justify waiver.1[15] Ms McMahon filed three documents in support of her application. One was anunsworn affidavit dated 25 March 2021. The affidavit was unsworn because MsMcMahon had, at short notice, had to leave New Zealand. The body of this affidavitmerely said that Ms McMahon was attaching various documents. I have reviewed thedocuments. Another document was a bundle of documents from what was called the"probate file", but which in fact was the proceeding in which the Foundation obtainedan order validating Mr Rowles' informal will. The third document was anotheraffidavit by Ms McMahon, this time sworn (in Missouri). This was filed late, but Idecided to consider it. There appears to be a reasonable excuse for the delay.[16] Mr Thwaite, on behalf of Ms McMahon, submitted that three matters justifieda dispensation from the normal requirement to pay security for costs. The first wasthat, because of the Foundation's application, the Court was required to assess the fulldispute between the parties, "and so Respondent requires the full assessment of theDistrict Court Judgment". I do not accept this. Ms McMahon's appeal will, equally(if not more), require an assessment of Judge McDonald's judgment.[17] Mr Thwaite's second point was that "more likely than not, Respondent'sapplication will fail, and so Respondent will owe costs to Appellant, which will cancelout any liability of Appellant (even if she loses)". I do not accept that this is anexceptional circumstance. It is not clear to me that the Foundation's application islikely to fail. Obviously, on an application for waiver of security (which wouldnormally be raised before, and addressed as part of, the case management conference),I am not going to embark on a detailed assessment of the merits of another application.From the limited information available to me, I cannot say that the Foundation'sapplication is without merit.1 R I G v Chief Executive of the Ministry of Social Development [2010] NZCA 370, leave to appealrefused G v Chief Executive of the Ministry of Social Development [2010] NZSC 141.[18] The third and final point made by Mr Thwaite was that the public interestrequired that the action and inaction of Henderson Reeves and the Foundation beexamined and adjudicated upon in this appeal. He submitted that this was a "uniquesituation", as the litigation flowed directly from the conduct of Henderson Reeves,which is under challenge from Ms McMahon. I do not agree that this is a matter ofpublic interest, let alone an exceptional circumstance justifying waiver of the usualrequirement to pay security. It is true that Ms McMahon makes allegations againstHenderson Reeves. But allegations against solicitors, including allegations of breachof ethical duties, are hardly unique. (I note, merely for the avoidance of any doubt,that Judge McDonald dealt with the allegations in the decision that Ms McMahon isnow appealing.)[19] I add that, in pursuing these points, Mr Thwaite referred to another proceeding(either extant or contemplated) in which it appears that Ms McMahon is challengingthe grant of the letters of administration. Mr Thwaite said that Ms McMahon'schallenge "is strong". That separate proceeding has no relevance to whether MsMcMahon should pay security for costs on this appeal.Amount and timing of security[20] The appeal has already been categorised as cost category 2.2 There is a one-day fixture allocated, but the Foundation seeks security based on only half a day, onthe basis that the other half is attributable to its application. I fix security in the sumof $1,195.[21] The normal rule is that security must be paid no later than ten working daysafter the case management conference: rule 20.13(4). The case managementconference was on 4 February 2021, so the normal rule is unworkable. Given that theappeal is to be heard on 21 April 2021, and given Ms McMahon's delays in bringingand then pursuing this application, it is not appropriate to allow the full ten workingdays from the date of this decision for Ms McMahon to pay security. She should paysecurity to the Registrar no later than 5.00 pm 7 April 2021.2 Minute of Brewer J 4 February 2021.Costs[22] Each party sought costs in the event of success.[23] Ms McMahon is to pay costs and disbursements to the Foundation on thisapplication. I allow the following cost items:(a) Notice of opposition (item 23, band A): 0.6.(b) Submissions (item 24, band A): 0.3.(c) Appearance (item 26): 0.25.[24] The Foundation is also entitled to the filing fee for its notice of opposition.Result[25] I decline Ms McMahon's application for a waiver of security for costs.[26] I direct that Ms McMahon pay to the Registrar, no later than 5.00 pm 7 April2021, security for this appeal in the sum of $1,195.[27] Ms McMahon is to pay costs and disbursements to the Foundation as set out at[23] and [24].______________________Campbell J