WILFRED v LEXINGTON LEGAL LIMITED [2019] NZCA 594

WILFRED v LEXINGTON LEGAL LIMITED [2019] NZCA 594 [28 November 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA31/2017[2019] NZCA 594BETWEEN HARMON LYNN WILFREDAppellantAND LEXINGTON LEGAL LIMITEDRespondentCourt: Kós P, Brown and Clifford JJCounsel: Appellant in personNo appearance for RespondentJudgment:(On the papers)28 November 2019 at 11 amJUDGMENT OF THE COURTA The appeal is struck out.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)[1] On 15 December 2016, Harmon Lynn Wilfred was adjudicated bankrupt byAssociate Judge Matthews on the application of Lexington Legal Ltd.1On 26 January 2017, Mr Wilfred appealed that adjudication to this Court on the basis1 Wilfred v Lexington Legal Ltd HC Christchurch CIV-2016-409-335, 15 December 2016.that the Judge erred in failing to exercise his discretion to halt the application foradjudication.2[2] Mr Wilfred applied for security for costs to be dispensed with.The Deputy Registrar declined that application, a decision upheld on review byHarrison J.3 Mr Wilfred was ordered to pay security by 17 May 2017. He did not doso.[3] An appeal is deemed abandoned under r 43 of the Court of Appeal (Civil) Rules2005 if an appellant does not file a case on appeal and apply for a hearing date withinthree months of bringing the appeal. Mr Wilfred filed his case on appeal in April 2017and was granted a waiver of the fee to schedule the hearing date at that time.Unfortunately, on a closer inspection of the file, it is not clear that Mr Wilfred thenwent on to formally apply for the allocation of a hearing date in terms of r 38. It wouldtherefore seem that the appeal ought to have been deemed abandoned by the Registrarat some point in 2017. For the purposes of this judgment, however, we are preparedto assume Mr Wilfred's appeal remains on foot.[4] Following Harrison J's judgment on security for costs, the appeal essentiallylay dormant for two years until, on 9 August 2019, Clifford J issued a minute warningMr Wilfred that the Court intended to consider whether to strike out his appealpursuant to r 44A for failing to prosecute it with due diligence and dispatch.The parties were invited to file submissions. In a memorandum, Mr Wilfred noted thatthe respondent entered liquidation in May 2017 and was removed fromthe Companies Register approximately one year later. He raised the possibility thatsecurity for costs might no longer be required and sought to continue the appeal.No submissions were filed for Lexington Legal.[5] We are satisfied that Mr Wilfred has not prosecuted the appeal with duediligence and dispatch.4 The issue of security for costs was fully litigated in 2017 andwe do not think events in the years since challenge the substantive correctness of2 Insolvency Act 2006, s 38. We note that Mr Wilfred did not apply for a suspension ofthe adjudication and his bankruptcy is therefore unaffected by this appeal.3 Wilfred v Lexington Legal Ltd [2017] NZCA 158.4 Court of Appeal (Civil) Rules 2005, r 44A(1)(b).Harrison J's determination, made at that point, that security for costs ought to be paid.Appellants required to pay security are not entitled to sit on their hands in the hopethat the position will eventually change. In any event, if the liquidation orderegistration of the respondent did in fact alter the position, Mr Wilfred should havetaken steps when those events occurred. Well over a year has passed without himdoing so and we are not prepared to reopen the issue.[6] The appeal is struck out.[7] There is no order as to costs.