ORLOV V THE NATIONAL STANDARDS COMMITTEE NO 1 CA127/2014 [2014] NZCA 195
The applications were dismissed because the appellant failed to provide sufficient particulars or a completed legal aid application to justify variation or extension; the Registrar's refusal and Wild J's subsequent direction requiring payment by a fixed date must be enforced to protect the respondent and ensure...
Source-derived case information.
- Citation
- [2014] NZCA 195
- Parties
- Appellant: Evgeny Orlov; Respondent: The National Standards Committee No 1
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 22 May 2014
- Procedural Posture
- Court of Appeal Civil Appeal / Interlocutory Applications Concerning Security for Costs Prior to Scheduled Hearing
- Outcome
- Applications to reduce security and for extension of time to pay security dismissed; earlier direction requiring payment of security remains in force.
- Legal Topics
- Security for Costs, Extension of Time, Rules of Court Compliance, Judicial Review of Registrar Decision, NZBORA Invocation
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evgeny Orlov
Appellant
The National Standards Committee No 1
Respondent
Procedural Posture
Court of Appeal Civil Appeal / Interlocutory Applications Concerning Security for Costs Prior to Scheduled Hearing
Legal Issues
- 1 Whether time for payment of security for costs should be extended
- 2 Whether the amount of security for costs should be reduced
- 3 Whether a late application to dispense with or vary security can be entertained after Registrar refusal and dismissal on review
Ratio Decidendi
The applications were dismissed because the appellant failed to provide sufficient particulars or a completed legal aid application to justify variation or extension; the Registrar's refusal and Wild J's subsequent direction requiring payment by a fixed date must be enforced to protect the respondent and ensure orderly hearing preparation.
Court Disposition
Applications to reduce security and for extension of time to pay security dismissed; earlier direction requiring payment of security remains in force.
Orders
- The applications to reduce the amount of security and for an extension of time to pay security are dismissed.
- The direction of Wild J given on 14 May 2014 requiring payment of security in the sum of $5,880 by 5 pm on Monday 19 May 2014 stands and must be complied with.
Full Case Text
Judgment text and source record
1 paragraphs
ORLOV V THE NATIONAL STANDARDS COMMITTEE NO 1 CA127/2014 [2014] NZCA 195 [22 May 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA127/2014[2014] NZCA 195BETWEEN EVGENY ORLOVAppellantAND THE NATIONAL STANDARDSCOMMITTEE NO 1RespondentCounsel: Appellant in personW C Pyke for RespondentJudgment:(On the papers)22 May 2014 at 11.00 amJUDGMENT OF STEVENS JThe applications to reduce the amount of security and for an extension of time to pay security are dismissed.____________________________________________________________________REASONS[1] Mr Orlov's appeal is set down for hearing in the Permanent Court on 27 May 2014. Neither the hearing fee nor the security for costs sum has been paid. The respondent has applied to strike the appeal out for non-payment of security.1 That application will be heard on 27 May 2014.[2] The background is as follows. On 6 May 2014 Mr Orlov sought a review of a decision made by the Registrar on 2 May 2014 declining to dispense with security for costs of the appeal.1 Minute of Ellen France J dated 20 May 2014.[3] In a judgment given on 14 May 2014 Wild J dismissed the application toreview the Registrar's decision.2 In that judgment the Judge gave the following direction:[14] Given r 37, and the fact that Mr Orlov's appeal is to be heard on 27May, I direct that Mr Orlov is to provide the security [of $5,880] by 5 pm on Monday 19 May 2014 latest.[4] The judgment of Wild J made it clear that the Registrar had been correct not to entertain the application to dispense with security because it was out of time and there was no power to accept or consider a late application.3 Even if the application were considered on the merits, there was no basis to dispense with security.4[5] Instead of paying the security as directed Mr Orlov filed an application to reduce security for costs or alternatively an application for extension of time to pay security for costs. The application relied on r 5 of the Court of Appeal (Civil) Rules 2005 (the Rules) and s 27 of the New Zealand Bill of Rights Act 1990.[6] The application is opposed by the respondent on the basis that the Registrar has already declined to make orders relating to security and an application for review of that decision has been dismissed by a Judge. Further, the application discloses no basis on which the orders sought might be made.[7] In the application, which is dated 16 May 2014, Mr Orlov says that theapplication would be supported by an affidavit "to be signed in due course". He alsosays that he has filed an application for legal aid and that application "is currently being processed".[8] The current position appears to be as follows:(a) The security amount of $5,880 has still not be paid.(b) Mr Orlov has not filed an affidavit in support.2 Orlov v The National Standards Committee No 1 [2014] NZCA 182.3 At [7]–[8].4 At [9]–[12].(c) Mr Orlov has not provided any written advice to the Registrar that the application for legal aid has been determined.5[9] I agree with the respondent's contention that Mr Orlov has disclosed no basis upon which the orders sought may be made.[10] First the powers in r 5 do not assist Mr Orlov. Given the proximity of the hearing and the consequences of failure to comply with the requirement to pay security for costs (r 37 of the Rules), Wild J was correct to set a tight timeframe for compliance. A respondent should not be required to face an appeal hearing unless the appellant has provided protection for any possible costs award. No basis for extending that time to pay security has been advanced.[11] So far as a reduction of the amount of security is concerned, the position remains the same as when Wild J gave his judgment. No sufficient particulars have been provided by Mr Orlov to warrant a reduction in the amount of security.[12] With respect to the legal aid application, the case officer has received advice that the legal aid application has been returned to Mr Orlov. This was because it was not completed in the manner prescribed under s 14(1)(a) of the Legal Services Act 2011.[13] Accordingly there is no basis on which the orders sought should be made. The applications are dismissed. The direction of Wild J given in the judgment of 14 May 2014 stands and Mr Orlov is required to comply with it.Solicitors:New Zealand Law Society, Wellington for Respondent5 Court of Appeal (Civil) Rules 2005, r 36(4).