FINLAY v SNEDDEN SOLICITORS NOMINEE COMPANY LIMITED [2019] NZCA 561

FINLAY v SNEDDEN SOLICITORS NOMINEE COMPANY LIMITED [2019] NZCA 561 [14 November2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA107/2014[2019] NZCA 561BETWEEN PETER RONALD FINLAYAppellantAND SNEDDEN SOLICITORS NOMINEECOMPANY LIMITEDRespondentCourt: Kós P, Brown and Clifford JJCounsel: No appearance for AppellantJ M Keating for RespondentJudgment:(On the papers)14 November 2019 at 4 pmJUDGMENT 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] In 2011, Snedden Solicitors Nominee Co Ltd obtained judgment in the sum ofapproximately $740,000 against Peter Ronald Finlay. Mr Finlay had guaranteed a loanadvanced by Snedden to another company with the goal of developing land nearKaitaia. That loan was not repaid. Snedden subsequently served a bankruptcy noticeon Mr Finlay, who applied for it to be set aside. On 7 February 2014, Courtney Jdeclined that application.1[2] Mr Finlay appealed that judgment to this Court on the grounds that the Judgehad made what he suggested were various errors of fact and law.2 He applied forsecurity for costs to be dispensed with. The Registrar declined that application,a decision upheld on review by French J.3 Mr Finlay was ordered to pay security by26 September 2014.[3] Security for costs was never paid. Nor was the appeal deemed abandoned,because in May 2014 — within three months of the appeal being brought,as required — Mr Finlay filed the case on appeal and a memorandum requestingthe allocation of a hearing date.4[4] Without payment of security for costs, the Registrar could not allocate ahearing date.5 The appeal therefore lay dormant for several years until, on9 August 2019, Clifford J issued a minute warning Mr Finlay that the Court intendedto consider 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.The parties were invited to file memoranda. Ms Keating, appearing for Snedden,submitted that the appeal should be struck out. No response was received fromMr Finlay.[5] This appeal has seen no progress for far too long. Mr Finlay was given a fullopportunity to pay security for costs — without which the appeal cannot proceed —and did not do so. Several years now passed without him taking any steps. We aresatisfied that he has failed to prosecute the appeal with due diligence and dispatch.6[6] The appeal is struck out.1 Snedden Solicitors Nominee Co Ltd v Finlay [2014] NZHC 87.2 Mr Finlay did not apply for, and this Court did not make, any order suspending proceedings inthe High Court pending determination of the appeal. Consequently, he was adjudicated bankruptin October 2014. That bankruptcy is unaffected by the appeal.3 Finlay v Snedden Solicitors Nominee Co Ltd [2014] NZCA 425.4 Court of Appeal (Civil) Rules 2005, r 43(1).5 Rule 37(2).6 Rule 44A(1)(b).[7] There is no order as to costs.Solicitors:Kennedys, Auckland for Respondent