GHANA V CHIN & ANOR CA CA95/04

GHANA V CHIN & ANOR CA CA95/04 2 August 2004IN THE COURT OF APPEAL OF NEW ZEALAND CA95/04BETWEEN HANA GHANA Applicant AND ALAN CHIN AND JAMES CHIN AS EXECUTORS OF THE WILL OF KIM KEE CHIN Respondents Coram: Anderson P Glazebrook J Hammond J Counsel: Applicant in Person P Cheng for Respondents Judgment (On the Papers): 2 August 2004JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J Introduction[1] Ms Ghana seeks special leave to appeal to this Court pursuant to s26P(1AA) of the Judicature Act 1908. The application relates to a judgment delivered by France J on 18 December 2003 upholding on review a decision of 13 August 2003 of Master Gendall (as he then was) requiring Ms Ghana to give security for costs of $15,000. Both parties have consented to the application being dealt with on the papers.High Court proceedings[2] Mr Alan Chin and Mr James Chin, as executors of the estate of the late Mr Kim Kee Chin, claim rent, rates and mesne profits against Ms Ghana, whooccupied premises owned by the late Mr Chin from 1987 until March 2002. Ms Ghana counterclaims alleging misrepresentation, breach of quiet enjoyment, breaches by the landlord of repair covenants under the lease and loss of "general business revenue". She also relies upon the non-issuing of a deed of lease and argues that the respondents advance false claims against her with malicious intent. It is in regard to the counterclaim that the order for security for costs was made. [3] The only issue before Master Gendall was whether the Court should exercise its discretion not to order security, the threshold test for impecuniosity having been met. The Master concluded that Ms Ghana's counterclaim was "substantially lacking in merit" and that it could not be said that it had a reasonable prospect of success. Nor could it be argued that the respondents caused Ms Ghana's impecuniosity. Turning to the conduct of the parties, Master Gendall noted the willingness of the respondents to discontinue their claim if Ms Ghana abandoned her counter-claim. He considered Ms Ghana's unwillingness to settle the matter as "unfortunate". Finally, he found that it could not be said that the respondents were using the security of costs process oppressively. Taking all these factors into consideration, he held that the Court should exercise its discretion to order security. [4] After reviewing the merits of the claim and counterclaims, France J agreed with Master Gendall's assessment that the merits of the counterclaim were not strong. Anything Ms Ghana recovered was not likely to exceed recovery by the respondents, even on an assessment of the lowest amount likely to be recovered by the respondents. Similarly, the Judge was not persuaded that the Master's assessment of the conduct of the parties and his conclusion that the respondents were not using the security for costs process oppressively were wrong. [5] The Judge commented that, if Ms Ghana wished to pursue the matter in these circumstances, the costs burden of her doing so should not fall on the respondents, particularly given their offer to abandon their claim if Ms Ghana abandoned her counterclaim. In these circumstances and given the relative merits of the matter France J considered the order for security was properly made. [6] On 19 April 2004 Wild J refused leave to Ms Ghana to appeal to this Court.The submissions of the parties[7] Ms Ghana, who has acted for herself in these proceedings, principally directed her written submissions at the manner in which the leave hearing before Wild J was conducted. This conforms with her Notice of Appeal, which purported to appeal against the decision of Wild J as being "biased and erroneous in law". The Court is also referred to an affidavit of the applicant that provided a narrative of the history of her dealings with Mr Chin and of the present proceedings. [8] The respondents submitted that the Master and France J both correctly assessed the merits of the counterclaim and appropriately dealt with the question of security for costs. It was submitted that there is no ground on which leave to appeal could be granted: all the relevant discretionary factors were weighed by both the Master and France J.Discussion[9] No appeal lies to this Court from the decision of the High Court on leave. Rather the appeal under s26P(1AA) is from the decision of the Court on review. Criticisms of the leave judgment are therefore irrelevant for the purpose of determining whether this Court should grant special leave. [10] At their highest, Ms Ghana's complaints amount to an assertion that the Master took an incorrect view of the merits of the respondents' claims and her counterclaims or that he gave too little weight to the impact the order would have on her ability to prosecute her counterclaim. These matters were fully canvassed before France J. Ms Ghana has not pointed to any new matters or to any error of principle in Master Gendall's or France J's approach that would justify special leave being granted.Result and costs[11] The application for special leave is declined. Costs of $750 (plus reasonable disbursements to be set by the Registrar if necessary) are awarded to the respondents.Solicitors: Paul Cheng & Co, Wellington for Respondents