REIHANA v FORAN [2023] NZCA 310

REIHANA v FORAN [2023] NZCA 310 [21 July 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA124/2023[2023] NZCA 310BETWEEN TONI COLIN REIHANAApplicantAND GREGORY FORANFirst RespondentAIR NEW ZEALAND LIMITEDSecond RespondentCourt: French and Collins JJCounsel: Applicant in personJ Q Wilson and T M J Shiels for RespondentsJudgment:(On the papers)21 July 2023 at 9.30 amJUDGMENT OF THE COURTThe application for leave to appeal the order for security for costs is declined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] In a judgment delivered on 16 September 2022, Peters J ordered Mr Reihanaprovide security for costs in the sum of $10,000 and that his proceeding be stayed untilhe did so.11 Reihana v Foran [2022] NZHC 2382 at [25]–[26].[2] Subsequently, Peters J declined Mr Reihana's application for leave to appealthe security and stay judgment.2 Mr Reihana now applies for leave from this Court toappeal the security for costs order.3Grounds of application[3] It is not easy to decipher the basis of Mr Reihana's application. He appears tosuggest that Peters J erred by:(a) not addressing a "pivotal costs v benefits analysis";(b) placing too much reliance on the fact that at the relevant timeMr Reihana resided in Australia;(c) over-emphasising the weakness of his case; and(d) failing to consider that no discovery had occurred nor hadinterrogatories been administered.Governing principles[4] In Greendrake v District Court of New Zealand, this Court explained thecriteria for leave to appeal in cases such as the one before us:4(a) the threshold for leave is high;(b) the applicant must identify an arguable error of law or fact;(c) the alleged error should be of general or public importance warrantingdetermination or otherwise of sufficient importance to the applicant tooutweigh the lack of general or precedential value;(d) the circumstances must warrant incurring further delay; and2 Reihana v Foran [2023] NZHC 324.3 Leave is required pursuant to Senior Courts Act 2016, s 56(5).4 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].(e) the ultimate question is whether the interests of justice are served bygranting leave.Analysis[5] We agree with the respondents that there is no issue of general or publicimportance in the proposed appeal against the security for costs decision. This isbecause the High Court has struck out Mr Reihana's claim,5 and the issue of securityfor costs is therefore no longer operative.[6] Mr Reihana has already lodged an appeal against the substantive strikeoutdecision. He failed to pay security for costs in relation to that appeal leading to theappeal being deemed abandoned. The proper course of action was for Mr Reihana tohave properly prosecuted that appeal. Mr Reihana cannot now continue this litigationunder the guise of a challenge to the High Court security for costs order.[7] We also agree with the respondents that there is no arguable error of law in thejudgment. The thresholds for security for costs and stay were clearly satisfied.[8] Peters J correctly assessed that the prospects of success were poor againstAir New Zealand and non-existent against Mr Foran. The correctness of the Judge'sapproach is proven by the fact that the High Court subsequently struck out the claimin its entirety.6Result[9] The application for leave to appeal the order for security for costs is declined.Solicitors:Bell Gully, Auckland for Respondents5 Reihana v Foran [2022] NZHC 2425 at [62].6 At [62]–[63].