KING v NORFOLK NOMINEES LIMITED [2019] NZCA 494

KING v NORFOLK NOMINEES LIMITED [2019] NZCA 494 [16 October 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA536/2014[2019] NZCA 494BETWEEN PAUL ANTHONY KINGAppellantAND NORFOLK NOMINEES LIMITEDRespondentCourt: Kós P, Brown and Clifford JJCounsel: Appellant in personB A Vautier for RespondentJudgment:(On the papers)16 October 2019 at 10.30 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 28 August 2014, Associate Judge Matthews adjudicated bankruptthe appellant, Paul Anthony King, on the application of the respondent, NorfolkNominees Ltd.1 On 24 September 2014, Mr King filed a notice of appeal in this Court,alleging the Judge made numerous errors of fact and law.21 Norfolk Financial Management Ltd v King [2014] NZHC 2051.2 Mr King did not apply for a suspension of the adjudication and his bankruptcy is unaffected bythis appeal.[2] Mr King applied for security for costs to be dispensed with. The Registrardeclined that application, a decision upheld on review by Stevens J, who orderedMr King to pay security no later than 20 March 2015.3 Shortly before that date,Mr King applied for an extension of time to pay security for costs. Stevens J declinedto grant an extension.4[3] Security for costs was never paid. Nor was the appeal deemed abandoned,because in December 2014 — within three months of the appeal being brought, asrequired — Mr King filed the case on appeal and a memorandum requestingthe allocation of a hearing date.5[4] Without payment of security for costs, the Registrar could not allocate ahearing date.6 The appeal therefore lay dormant for several years until, on9 August 2019, Clifford J issued a minute warning Mr King that the Court intended toconsider whether to strike out his appeal pursuant to r 44A of the Court of Appeal(Civil) Rules 2005 for failing to prosecute it with due diligence and dispatch. Theparties were invited to file memoranda. Mr King filed a lengthy memorandumreiterating the merits of his appeal and blaming the Registrar for the delay. Mr Vautier,for the respondent, submitted that the appeal should be struck out.[5] Mr King's criticism of the Registrar is misconceived: the inaction is due tothe fact he did not pay security for costs when it fell due. He was given a fullopportunity to do so. Four years have now passed and the appeal has seen no progressfor far too long. We are satisfied that Mr King has failed to prosecute the appeal withdue diligence and dispatch.7[6] The appeal is struck out.[7] There is no order as to costs.Solicitors:Glaister Ennor, Auckland for Respondent3 King v Norfolk Nominees Ltd [2015] NZCA 16.4 King v Norfolk Nominees Ltd CA536/2014, 20 April 2015 (Minute of Stevens J).5 Court of Appeal (Civil) Rules 2005, r 43(1).6 Rule 37(2).7 Rule 44A(1)(b).