KORONIADIS V BANK OF NEW ZEALAND CA522/2013 [2014] NZCA 477

KORONIADIS V BANK OF NEW ZEALAND CA522/2013 [2014] NZCA 477 [29 September 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA522/2013[2014] NZCA 477BETWEEN ATHANASIOS KORONIADISAppellantAND BANK OF NEW ZEALANDRespondentCounsel: Appellant in personJ Toebes for RespondentJudgment:(On the papers)29 September 2014 at 3.00 pmJUDGMENT OF STEVENS J(Review of Decision of Registrar)A The application to review the decision of the Registrar is dismissed.B Mr Koroniadis is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.____________________________________________________________________REASONSIntroduction[1] By letter dated 18 September 2014 Mr Koroniadis applied to the Registrar to review her decision declining to dispense with security for costs. It is appropriate totreat that letter as a request for review of the Registrar's decision.11 Court of Appeal (Civil) Rules 2005, r 7.Procedural history[2] The background to Mr Koroniadis' appeal is summarised in this Court'sjudgment of 23 May 2014 granting an application to extend the time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005.2 As a consequence of that decision, the effective date of filing for Mr Koroniadis' appeal was 23 May 2014. Security forcosts was set by the Registrar at $5,880 on that day and Mr Koroniadis was informed of the 20 working day period for the filing of any application for an order in regards to security.3[3] That period expired on 23 June 2014. Mr Koroniadis applied for dispensation of security on 22 August 2014 citing only an application for waiver of the setting down fee in support. The Registrar declined to dispense with security on 5 September 2014 on the basis that the application was not received within the 20 working day period.4Evaluation[4] Wild J in Orlov v National Standards Committee No 1 identified threereasons to support the Registrar's approach:5(a) 20 working days is a generous period within which to apply for dispensation.(b) Applications to the Registrar can be made on an informal basis so do not require as much effort as a formal application.6(c) The aim of r 35 is to deal with security promptly following the filing of the appeal. Enforcement of time limits aligns with that purpose.2 Koroniadis v Bank of New Zealand [2014] NZCA 197 at [4]–[8].3 Court of Appeal (Civil) Rules, s 35(6) and (7).4 Citing Orlov v National Standards Committee No 1 [2014] NZCA 182.5 Orlov, above n 4, at [7].6 Court of Appeal (Civil) Rules, r 35(7)(b).[5] I respectfully agree with the approach of Wild J. On that basis I reach the same conclusion that the Registrar was correct not to review the application on its merits and was correct to decline to dispense with security.[6] Even if that were not the case, I am not satisfied dispensation from paying security for costs would be warranted. In his letter of 18 September Mr Koroniadis provided additional information in support of his application for dispensation. He says that:(a) he relies on financial aid as a student to support himself; and(b) the Bank of New Zealand (the respondent) has conveyed an incorrect impression about his relationship with the Korofam Trust, which appears to be a family trust. Mr Koroniadis is no longer a trustee or beneficiary of the Trust.[7] In opposing the application to the Registrar for dispensation of security the respondent submitted it believed Mr Koroniadis had access, through the Trust, to income.[8] On the face of Mr Koroniadis' application, he appears impecunious.However, I draw attention to the views expressed by the Supreme Court in Reekie v Attorney-General:7[43] An appellant without liquid assets may be required to borrow money to provide security. It might be appropriate to investigate whether it is reasonable for another party (such as a related family trust or a close relative) to provide funding. If a trust associated with the appellant or a close relative has the resources but is unwilling to provide security, it may suggest that dispensation is inappropriate. Proof that security cannot be provided may require full disclosure of financial circumstances and the sources of funding relied on by the appellant to support his or her general lifestyle.[9] While Mr Koroniadis states he is no longer a trustee or beneficiary of the Trust it might be the case that through a family member he could gain access to funds. That may suggest dispensation is inappropriate. However, I consider it is not7 Reekie v Attorney-General [2014] NZSC 63.possible to make that finding without further investigation of the relationship between Mr Koroniadis and the Trust. Without the benefit of that further inquiry I am prepared to accept he is impecunious.[10] That is not the end of the matter. The Supreme Court in Reekie set out a broad test as follows:8[W]e consider that the discretion to dispense with security should be exercised so as to:(a) preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and(b) prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent's costs if unsuccessful). [A]nalysis of costs and benefits should not be confined to those which can be measured in money.[11] As noted in this Court's judgment on the r 29A application, there may bemerit in the appeal.9 However, the merit as identified concerns procedural requirements under the Property Law Act 2007.10 Even if Mr Koroniadis' appealsucceeded in relation to those procedural grounds, the debt at issue would still be payable to the respondent, albeit somewhat later in time. The respondent rightly states that, in the interim, interest on the debt continues to accrue. On those grounds, I am not satisfied a reasonable and solvent litigant would reasonably wish to pursue this appeal. As the Supreme Court stated, security should only be dispensed with if"it is right to require the respondent to defend the judgment without the usual protection as to costs provided by security".11 This is not such a case.8 At [35].9 Koroniadis, above n 2, at [15]–[16] and [22].10 Property Law Act 2007, ss 119 and 121.11 Reekie, above n 7, at [21].Result[12] The review of the decision of the Registrar is dismissed. Mr Koroniadis is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.[13] In its memorandum opposing the application to the Registrar to dispense with security the respondent sought an order striking out the appeal under r 37(1). At the appropriate time it is open to the respondent to make a formal application for strike- out accompanied by the appropriate filing fee.Solicitors:JTLAW, Wellington for Respondent