MCLEOD v GILES-PAIN & Anor [2020] NZHC 369

MCLEOD v GILES-PAIN & Anor [2020] NZHC 369 [5 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-198[2020] NZHC 369BETWEEN PATRICIA TUI MCLEODAppellantAND KEVIN GILES-PAIN and MICHAELPRENTICERespondentsHearing: 3 March 2020Appearances: Appellant in person supported by Mr A Ransfield as McKenzieFriendL E Steel for the First RespondentsJudgment: 5 March 2020JUDGMENT OF POWELL JThis judgment was delivered by me on 5 March 2020 at 3.30 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The appellant, Patricia McLeod, has appealed against a decision ofJudge Harrison in the District Court at Auckland. In a Minute dated 18 December2019 Judge Harrison had struck out Mr Giles-Pain and Mr Prentice from an appeal tothe District Court from the Tenancy Tribunal and awarded security for costs on theappeal in favour of Barfoot & Thompson. It is difficult to be clear exactly what issueMs McLeod takes with Judge Harrison's Minute but I have taken the view that sheobjects both to the removal of Mr Giles-Pain and Mr Prentice and the imposition ofsecurity for costs.[2] Although this was the first call of the appeal Ms Steel for Mr Giles-Pain andMr Prentice has applied for the appeal to be struck out. Ms Steel notes that the appealwas not served on Mr Giles-Pain and Mr Prentice in time, nor has it been served oneither Barfoot & Thompson as the remaining respondent on the original appeal, or theDistrict Court at Auckland, let alone on the Crown who is also identified as a"Defendant Principal Respondent at Large".[3] Service issues aside, even more fundamentally Ms Steel has noted that theunderlying appeal Judge Harrison issued directions in respect of has in fact beendetermined. In particular, Ms Steel has confirmed the underlying appeal went tohearing at the District Court on 14 January 2020. As Ms McLeod did not appear itwas struck out and has not been appealed, with costs subsequently awarded in favourof Barfoot & Thompson. This effectively makes the present appeal to this Court mootgiven that there can be no jurisdiction to either reinstate Mr Giles-Pain and Mr Prenticeto the underlying appeal or otherwise revisit the question of security. In thosecircumstances I accept Ms Steel's submission that there can be no basis for the presentappeal to continue. The matters determined by Judge Harrison in his Minute of 18December 2019 have no independent existence once the underlying appeal has beendismissed leaving this Court with no jurisdiction to either reinstate Mr Giles-Pain andMr Prentice or to revisit security. As a result the present appeal must be and isdismissed.[4] Ms Steel has sought costs on the dismissal of the appeal. Although these areopposed by Ms McLeod I am satisfied that this is a case where costs are appropriategiven it was necessary for Mr Giles-Pain and Mr Prentice to take steps to protect theirposition, noting also that the underlying issues have previously come before this Courtwhen Ms McLeod has previously attempted to join Mr Giles-Pain and Mr Prentice asthe owners of the property when in fact it is owned by a company, Giles-PainProperties Limited.[5] In the circumstances, I am satisfied that costs are appropriate for the filing ofa memorandum for this first case management conference together with Ms Steel'sappearance at the conference. This comes to a total of 0.7 days on a 2B basis, a sumof $1,673.00 which I direct is to be paid by Ms McLeod in favour of Mr Giles-Painand Mr Prentice._______________________________Powell J