KING V NORFOLK NOMINEES LIMITED CA536/2014 [2015] NZCA 16

KING V NORFOLK NOMINEES LIMITED CA536/2014 [2015] NZCA 16 [20 February 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA536/2014[2015] NZCA 16BETWEEN PAUL ANTHONY KINGAppellantAND NORFOLK NOMINEES LIMITEDRespondentCounsel: Appellant in personB A Vautier for RespondentJudgment:(On the papers)20 February 2015 at 11.30 amJUDGMENT OF STEVENS J(Review of Registrar's Decision)A The application to review the Registrar's decision refusing to dispense with security for costs is dismissed.B The appellant is to pay the sum of $5,880.00 by way of security for costs on or before 20 March 2015.____________________________________________________________________REASONSIntroduction[1] Mr King appeals against a decision of Associate Judge Matthews, granting an order adjudicating him bankrupt.1 Security for costs was set at $5,880. On 19 October 2014, Mr King applied to have security for costs dispensed with or deferred until the determination of the appeal under r 35(6) of the Court of Appeal1 Norfolk Financial Management Ltd v King [2014] NZHC 2051.(Civil) Rules 2005 (the Rules). The Registrar declined that application on 1 December 2014. Mr King has applied for a review of that decision. I have considered the application for review under r 7(2) of the Rules and s 61A(3) of the Judicature Act 1908.[2] The notice of appeal listed Norfolk Financial Management Ltd as the respondent. Counsel for the respondent has filed a memorandum dated 6 November 2014 explaining that Norfolk Financial Management Ltd is not the correct party to the appeal.2 Its debt has now been satisfied. There is however a costs order of $43,405.53 owing to Norfolk Nominees Ltd. That company (referred to here as Norfolk) was substituted as creditor in the High Court and has since taken over as creditor in the bankruptcy proceedings.3 Mr King still owes Norfolk this sum for costs. Norfolk is therefore substituted as the correct respondent in this Court.The Registrar's decision[3] Mr King relies primarily on his bankruptcy to assert that the Registrar erred in refusing to dispense with security. He says he has no money and it would be illegal for him to hold any cash assets, as all his assets are vested in the Official Assignee.[4] The Registrar dismissed the application on the ground that, despite seeking further official information as to his financial position, Mr King had not provided the requested details. Further, there was little merit to the appeal; Mr King was self- represented and had not applied for legal aid, and further reiterated impecuniosity alone does not warrant dispensation with security for costs.2 Referring to Norfolk Financial Management Ltd v King [2014] NZHC 1013. Norfolk Financial Management Ltd was granted orders in late December 2013 to withdraw as creditor, andfollowing two other creditors' initial desires to be substituted, Norfolk Nominees is now thejudgment creditor. Mr King appears to have resisted this, and filed his appeal against the substantive adjudication as if appealing against Norfolk Financial Management Ltd. That is not the correct respondent – we refer throughout this decision to Norfolk Nominees Ltd, unless otherwise stated.3 Norfolk Financial Management Ltd v King, above n 2, at [20]. Norfolk Financial Management Ltd was incorrectly listed as the applicant in the decision adjudicating Mr King bankrupt, noted above at n 1, a judgment released after the decision substituting Norfolk Nominees Ltd as creditor. This was rectified by Associate Judge Matthews in a minute, reissuing the judgment, noting the correct respondent in its text: Norfolk Financial Management Ltd v King HC Christchurch CIV-2013-409-1192, 11 November 2014 at [4].[5] The Registrar formulated the test to be applied as follows:Security for costs will only be dispensed with where I am of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security. If a reasonable and solvent litigant would not proceed with the appeal, having regard to the benefits of bringing the appeal weighed against the costs of bringing the appeal, then security for costs will not be dispensed with.Grounds for review from the Registrar's decision[6] Mr King sought a review on the grounds that, having enclosed a letter from the New Zealand Insolvency Service, there was incontrovertible proof of his insolvency. He contends a dispensation ought to have been granted on that basis.Analysis[7] In Reekie v Attorney-General, the Supreme Court held the Registrar (or a single Judge on review) should only dispense with security if it is right to require the respondent to defend the judgment under appeal without protection as to costs.4Whether that is right is a matter of discretion, turning on whether the Court shouldpreserve an impecunious person's access to the Court for an appeal that a solvent person would reasonably wish to prosecute.5[8] I am satisfied there are no valid grounds to interfere with the Registrar's decision. First, Mr King failed to comply with the Registrar's request for completeand comprehensive information of his financial situation. The mere fact he was abankrupt is not a complete answer to the Registrar's inquiry. He has failed toprovide full current financial information, disclosure of related family trusts or relatives who may be able to provide funding, information as to current assets held by the Official Assignee and any applications he has made to release any such assets to fund the present appeal, and information as to any possible security. The Registrar was correct to seek up to date information proving Mr King's present financial position.4 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [21] and [31].5 At [35].[9] Secondly, even if Mr King had provided the requested information and satisfied the Registrar as to his impecuniosity, that alone does not warrant granting a dispensation.6 Rather, the discretion to dispense with security for costs should not be exercised to allow an impecunious appellant to secure the advantage of being able to prosecute an appeal which would not sensibly be pursued by a solvent litigant. It is clear the Registrar applied the correct test as set out at [5] above.[10] Thirdly, the Registrar noted Mr King is both self-represented and there is no suggestion he has applied for legal aid. Reekie emphasises if an appellant is not prepared to submit the proposed appeal for a legal aid assessment, they may similarly not be well-placed to obtain dispensation.7[11] With respect to the merits of the appeal, the Registrar carefully considered the nature of the proposed appeal. The notice of appeal discloses no new or meritorioussubmissions capable of challenging Associate Judge Matthews' decision. The grounds on which he proposes to advance his appeal do not address the substance ofthe Associate Judge's reasoning. Rather, they seek to challenge, again, the validity of the initial disclosure by Norfolk Financial Management Limited. That is an issue argued, determined and resolved over two years ago.8 Mr King is attempting to revive issues determined by his own (successful) appeal to this Court, following which the issues were rectified.[12] Mr King specifies numerous other grounds of appeal. These are all either unsubstantiated, unfounded or have already been determined in their entirety. There are no exceptional circumstances and no public interest considerations that would justify dispensing with security for costs. I am satisfied therefore, like the Registrar, a solvent litigant would neither sensibly nor reasonably wish to pursue this claim.6 Reekie, above n 4, at [20].7 At [36] and [38].8 Leading to a hearing before this Court in King v Norfolk Nominees Ltd [2012] NZCA 190 and numerous subsequent High Court hearings: Norfolk Nominees Ltd v King [2013] NZHC 398 and 556, and [2014] NZHC 278.Result[13] The application for review of the Registrar's decision not to dispense with ordefer payment of security for costs is declined.[14] The appellant must pay to the Registrar security of $5,880 for therespondent's costs in this Court in relation to the present appeal within 20 workingdays of this judgment.Solicitors:Glaister Ennor, Auckland for Respondent