PATEL & ANOR v GRANT AND JACQUELINE MACLEOD AS TRUSTEES OF THE MACLEOD TRUST [2018] NZCA 382
The application to strike the appeal out under r 37 was declined because the security for costs had been paid; the court would not assess the merits at this stage and reserved costs.
Source-derived case information.
- Citation
- [2018] NZCA 382
- Parties
- Appellant: Pamela Patel; Appellant: Vinesh Patel; Respondent: Grant and Jacqueline Macleod as Trustees of the Macleod Trust
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 20 September 2018
- Procedural Posture
- Civil Appeal / Application to Strike Out for Non Payment of Security for Costs Under R 37
- Outcome
- Application to strike out the appeal declined; costs reserved.
- Legal Topics
- Security for Costs, Strike Out, Forfeiture of Leasehold Property, Setting Down Fee, Abandonment of Appeal
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pamela Patel
Appellant
Vinesh Patel
Appellant
Grant and Jacqueline Macleod as Trustees of the Macleod Trust
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out for Non Payment of Security for Costs Under R 37
Legal Issues
- 1 Whether failure to pay security for costs by the due date warranted striking the appeal out under r 37
- 2 Whether the appeal lacked merit such that strike out was appropriate
- 3 Prejudice to respondents from delay
Ratio Decidendi
The application to strike the appeal out under r 37 was declined because the security for costs had been paid; the court would not assess the merits at this stage and reserved costs.
Court Disposition
Application to strike out the appeal declined; costs reserved.
Orders
- Application to strike out the appeal declined.
- Costs reserved.
Full Case Text
Judgment text and source record
1 paragraphs
PATEL & ANOR v GRANT AND JACQUELINE MACLEOD AS TRUSTEES OF THE MACLEOD TRUST[2018] NZCA 382 [20 September 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA173/2018[2018] NZCA 382BETWEEN PAMELA PATEL AND VINESH PATELAppellantsAND GRANT AND JACQUELINE MACLEODAS TRUSTEES OF THE MACLEODTRUSTRespondentsCourt: Miller and Williams JJCounsel: J M Pidgeon and B Thompson for AppellantsK M McMullen for RespondentsJudgment:(On the papers)20 September 2018 at 3.00 pmJUDGMENT OF THE COURTA The application to strike out the appeal for non-payment of security for costsis declined.B Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] The respondents move to strike this appeal out under r 37 of the Court ofAppeal (Civil) Rules 2005 for failure to pay security for costs by due date and because,they say, the appeal has no merit and they are prejudiced by delay.[2] The judgment appealed from denied the Patels relief against forfeiture ofleasehold property.1[3] The appeal was filed on 11 April 2018 and security of $6,600 was due by10 May. It was not paid. After the strikeout application was filed the Patels paidsecurity. However, they did not pay the setting-down fee of $2,700. Brown Jdetermined that the appeal would be deemed abandoned for purposes of r 43 if the feewas not paid. That was deemed to have happened on 12 July 2018.[4] The respondents nonetheless pursue their application. They still invoke r 37,on the ground that security was not paid when due. Otherwise they say that the appealis without merit.[5] We decline to strike the appeal out at this time. We are not prepared to inquireinto the merits at this time.2 Jurisdiction exists under r 37, but security has been paid.[6] The application is declined. We reserve costs.Solicitors:Pidgeon Law, Auckland for AppellantsCavell Leitch, Christchurch for Respondents1 Patel v Macleod [2018] NZHC 3882 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [39].