CRESER V CRESER [2015] NZCA 128

CRESER V CRESER [2015] NZCA 128 [22 April 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA38/2015[2015] NZCA 128BETWEEN RICHARD JOHN CRESERAppellantAND JANINE MICHELLE CRESERFirst RespondentAND THE OFFICIAL ASSIGNEESecond RespondentCounsel: Appellant in PersonNo appearance for RespondentsJudgment:(On the papers)22 April 2015 at 11 amJUDGMENT OF COOPER J[Review of Registrar's decision]A The time for applying to review the Registrar's decision is extended.B The Registrar's decision is confirmed.C Security for costs in the sum of $5,880 is to be paid by Wednesday 20 May 2015.____________________________________________________________________REASONS[1] Mr Creser applies for a review of the Registrar's decision of 3 March 2015 refusing his application to dispense with security for the costs of this appeal. His application is out of time and he has therefore sought to extend the time for making it.[2] Mr Creser's substantive notice of appeal was filed on 29 January 2015. He alleges that Associate Judge Smith made a number of errors in dismissing Mr Creser's application for annulment of his bankruptcy under s 119(1)(a) of the Insolvency Act 1967 (the Act).1 Mr Creser had argued that the order of adjudication, made on 8 March 2004, should not have been made because of claimed deficiencies in the bankruptcy notice on which it was based.[3] Mr Creser had made a previous application for annulment of his bankruptcy, relying on s 119(1)(a), (b) and (c) of the Act, despite the fact he had already been automatically discharged under the Act. On 27 August 2007 MacKenzie J dismissed the application in so far as it relied on s 119(1)(a) and (c), but annulled the bankruptcy under s 119(1)(b) on the basis that the debts had been fully paid or satisfied.2 Despite this, Associate Judge Smith was prepared to assume, without deciding, that there might be jurisdiction for the Court to make a further order annulling the adjudication under s 119(1)(a).3 But he considered it was not open for Mr Creser to bring a second application, relying on grounds all of which had been available to him before the first application was made.4 In case that conclusion was wrong, he recorded that he would not have been prepared to exercise his discretion in favour of making an annulment order because of the extreme delay that had elapsed since the order for adjudication was made.5[4] Mr Creser's application to the Registrar to dispense with security for costswas advanced on the basis that the respondent did not appear and was not represented at the hearing in the High Court; that Mr Creser will be represented by counsel at the hearing of the appeal and the case presented will be brief and succinct. Substantively, he claims that the grounds of appeal raise issues as to conflicting decisions of the Court of Appeal and the High Court with the result that it is in the public interest to clarify "where the law stands on the point canvassed."1 Creser v Creser [2014] NZHC 3267 [the substantive judgment].2 Creser v Creser HC Wellington CIV-2003-485-2225, 24 August 2007. The Official Assignee accepted that was the position.3 The substantive judgment, above n 1, at [35].4 At [48].5 At [49]–[50].[5] After referring to various passages in the Associate Judge's judgment, theRegistrar recorded that she did not accept the circumstances of the appeal were exceptional, and that there is nothing in the appeal of public importance or significance. Having referred to the decision of the Supreme Court in Reekie v Attorney-General, she declined the application for dispensation and confirmed that security in the sum of $5,880 was required to be paid. 6[6] In the application for review of the Registrar's decision Mr Creser rehearsesvarious grounds of appeal set out in his notice of appeal while repeating claims (that have been the subject of previous litigation) that the bankruptcy notice on which he was adjudicated bankrupt was deficient. Effectively, three grounds are advanced in support of the actual review application.[7] The first ground is that the Registrar had no foundation for her conclusion that the respondent should not be put to defending the judgment under appeal without the usual protection as to costs provided by security. Mr Creser claims that conclusion was perverse in that it was reached despite the fact that the respondent is not legally represented and did not oppose waiver of security despite opportunity to do so. In fact, albeit informally, the respondent has advised the Registrar that shewishes security for costs to be set: the Registrar's decision simply noted that nomemorandum to that effect had been filed.[8] Mr Creser's submission appears to be based on a misunderstanding. Rule 35(2) of the Court of Appeal (Civil) Rules 2005 imposes a general rule that anappellant must pay security for the respondent's costs in the Court of Appeal. While that is subject to the Registrar's power, under r 35(6)(c) to dispense with security, the Supreme Court has confirmed that the Registrar should only dispense with security for costs if she is 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.7 It is unnecessary to discuss that judgment at length. For present purposesit is sufficient to note the Supreme Court's observation that the power to dispensewith security should be exercised so as to preserve access to the Court of Appeal by6 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.7 Reekie v Attorney-General, above n 6, at [21] and [31].an impecunious appellant where the appeal is one that a solvent appellant would reasonably wish to prosecute.8[9] The fact that the respondent was not represented in the High Court is not determinative of the waiver issue. As the Registrar noted, she did file a notice of opposition and Associate Judge Smith recorded that she had provided written submissions in opposition.9 It would not be right for the Registrar to assume that noissue as to the respondent's costs will arise on appeal.[10] The second issue raised is that the Registrar had details of Mr Creser'sfinancial situation, which had been provided when he had made application for a waiver of the filing fee on the appeal. This ground is apparently a reference to theRegistrar's observation that Mr Creser had not provided details of his financial situation while noting that his application for dispensation was not based on his financial situation. I infer that Mr Creser now wishes to advance impecuniosity as a basis upon which the requirement for security should be waived and it does appearfrom the Court's records that he was, at the time he applied for the fee waiver,limited to weekly benefit payments in the net amount of $255.56. I accept that, as the present application proceeds as if de novo, it is appropriate to consider Mr Creser's financial position. I accept that, if the position remains the same as itwas when he made his application for a fee waiver, he will not be in a position to pay security for costs. However impecuniosity does not, of itself, justify an order dispensing with security.10[11] Of more significance for present purposes is Mr Creser's third claim that the matter is one that has resulted in a "serious injustice" and involves a significantpublic interest. I do not accept either contention.[12] The only injustice to which Mr Creser can point is the allegedly deficient adjudication of him as bankrupt. However, he has been discharged from the bankruptcy. Moreover, as Associate Judge Smith found, his argument challenging the validity of the bankruptcy was technical in nature, based on the inclusion of two8 Reekie v Attorney-General, above n 6, at [35].9 The substantive judgment, above n 1, at [8].10 Reekie v Attorney-General , above n 6, at [20].separate judgment debts (for which he was undoubtedly liable) representing separate costs awards against him, in one bankruptcy notice.11 That was an argument available to him but when he originally sought to appeal against the decision adjudicating him bankrupt made on 8 March 2004. However, a reading of thisCourt's judgment of 2 September 2004 shows that the argument was not raised.12As noted above, Mr Creser previously made an application for annulment on the basis that the March 2004 adjudication order should not have been made. That application was dismissed by MacKenzie J on 24 August 2007.13 That application would also have provided an opportunity for Mr Creser to advance the arguments that he pursued before Associate Judge Smith. It appears from the judgment of MacKenzie J that he did not do so.[13] In all the circumstances of this case, no injustice will arise if, because of his impecuniosity, Mr Creser is not in a position to pay security for costs.[14] As to the public interest, the issues relate only to Mr Creser's position. I amnot satisfied that there is any alleged conflict between decisions of the Court of Appeal and the High Court as asserted by Mr Creser; if there is, the decision of the Court of Appeal will prevail.[15] Overall, I am satisfied that this is not a case which a solvent appellant would reasonably wish to prosecute. It would be most unlikely to succeed and, even if Mr Creser could establish the technical point that he wishes to raise about the original bankruptcy notice, it is equally unlikely that the Court would make a discretionary judgment different to that made by the Associate Judge in the judgment Mr Creser seeks to appeal, given the length of time that has elapsed (over 11 years) since the bankruptcy adjudication and the subsequent annulment of the bankruptcy (over seven years).11 His liability for the debts on which the bankruptcy notice was based was confirmed by this Court in Creser v Creser CA110/04, 2 September 2004.12 Creser v Creser, above n 11.13 Creser v Creser, above n 2.[16] In addition, I have concluded that a reasonable and solvent litigant would not proceed with an appeal in this case because the benefits of doing so would be far outweighed by the costs.Result[17] I extend the time for applying for a review of the Registrar's decision butI confirm the Registrar's decision.[18] I direct that security for costs in the sum of $5,880 is to be paid by Wednesday 20 May 2015.