LOWE v JOHN SHANE HEMARA [2023] NZCA 134
The appeal was struck out because the appellant failed to comply with the Court's direction to file submissions, took no further steps after counsel withdrew, and therefore met the threshold for striking out under r 44A; the respondent was entitled to costs and the security for costs was to be applied in reduction...
Source-derived case information.
- Citation
- [2023] NZCA 134
- Parties
- Appellant: Kellee Louise Lowe; Respondent: John Shane Hemara
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 28 April 2023
- Procedural Posture
- Civil Appeal / Strike Out Application (application Under R 44 a Heard on the Papers)
- Outcome
- Appeal struck out
- Legal Topics
- Strike Out Under R 44 a, Caveat, Security for Costs, Failure to Comply With Procedural Directions
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kellee Louise Lowe
Appellant
John Shane Hemara
Respondent
Procedural Posture
Civil Appeal / Strike Out Application (application Under R 44 a Heard on the Papers)
Legal Issues
- 1 Whether the appeal should be struck out for the appellant's continuing default in complying with procedural directions
- 2 Whether it would be unfair to the respondent to require further preparation for the hearing
- 3 Entitlement to costs and application of security for costs
Ratio Decidendi
The appeal was struck out because the appellant failed to comply with the Court's direction to file submissions, took no further steps after counsel withdrew, and therefore met the threshold for striking out under r 44A; the respondent was entitled to costs and the security for costs was to be applied in reduction of the award.
Court Disposition
Appeal struck out
Orders
- The appeal is struck out.
- The appellant is to pay the respondent costs and disbursements: costs on a band A basis for preparation for a standard appeal, costs for preparation of the application to strike out, and disbursements in accordance with Schedule 1 to the respondent's application dated 25 February 2023.
Full Case Text
Judgment text and source record
1 paragraphs
LOWE v JOHN SHANE HEMARA [2023] NZCA 134 [28 April 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA315/2022[2023] NZCA 134BETWEEN KELLEE LOUISE LOWEAppellantAND JOHN SHANE HEMARARespondentCourt: Courtney, Venning and Downs JJCounsel: No appearance for AppellantS A Grant for RespondentJudgment:(On the papers)28 April 2023 at 2.30 pmJUDGMENT OF THE COURTA The appeal is struck out.B The appellant is to pay the respondent costs and disbursements in accordancewith [6]. The security for costs paid in relation to this appeal is to be paid tothe respondent in reduction of the costs awarded.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] Ms Lowe appealed a decision of Associate Judge Sussock ordering that acaveat, lodged by Mr Hemara over a property owned by Ms Lowe, not lapse.1The appeal was set down for hearing on 21 March 2023. On 8 December 2022Ms Lowe was directed to file submissions by 14 February 2023. She failed to comply1 Hemara v Lowe [2022] NZHC 1215.with that direction. On 21 February 2023 Ms Lowe's counsel sought and was grantedleave to withdraw on the grounds of non-payment of fees and lack of instructionsregarding the appeal.[2] On 25 February 2023 Mr Hemara applied under r 44A of the Court of Appeal(Civil) Rules 2005 to strike out Ms Lowe's appeal on the ground that, in thesecircumstances, it would be unfair to require him to incur the cost of further preparationfor the hearing.[3] Rule 44A(1)(a) permits the Court to strike out an appeal if the appellant is incontinuing default in complying with any procedural direction or order made bya Judge. The rule requires that a party be given 10 working days' notice of the Court'sintention to consider striking out the appeal.2 Mr Hemara's application is based onMs Lowe's failure to comply with the Court's direction requiring her to filesubmissions in advance of a fixture date.[4] On 9 March 2023 the fixture was vacated and notice was given pursuant tor 44A(2) requiring Ms Lowe to comply with the direction to file submissions by24 March 2023.3 She did not do so. Nor did she take any other steps in the appeal.[5] We are satisfied that the appropriate course is to strike out the appeal. We makean order to that effect.[6] Mr Hemara is entitled to costs for preparation for a standard appeal on a band Abasis, for preparation of the application to strike out the appeal, and for disbursementsin accordance with Schedule 1 to his application to strike out the appeal dated25 February 2023. The security for costs paid in relation to this appeal is to be paid toMr Hemara in reduction of the costs awarded.Solicitors:Carter Atmore, Auckland for Respondent2 Court of Appeal (Civil) Rules 2005, r 44A(2)(a).3 Lowe v Hemara CA315/2022, 9 March 2023.