Apatu v Apatu [2011] NZCA 616 (2 December 2011)

Last Updated: 7 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA354/2011 [2011] NZCA 616

BETWEEN ASHLEY KANARA APATU First Applicant

AND WINIPERE EVA MAUGER Second Applicant

AND KENNETH TAMA TE KAPUA APATU First Respondent

AND NATHAN WIRIHANA APATU KATHERINE LOUISE BATES Second Respondents

Counsel: Applicant in person M E Macfarlane for Second Respondents

Judgment: 2 December 2011 at 10.30 am

JUDGMENT OF ARNOLD J

The application for review of the Acting Registrar’s decision as to security for costs is declined. Security for costs of $5,560.00 must be paid into Court within 20 working days of the date of this judgment.

REASONS

Introduction

[1] Mr Apatu has filed an appeal against a decision of Joseph Williams J dismissing a claim by Mr Apatu and his sister against three members of their family as the executors of their father’s estate.[1] Security for costs on the appeal was set at $5,560. On 15 June 2011, Mr Apatu requested a dispensation from the requirement to pay security for costs.[2] Counsel for the respondent opposed the application. In a letter dated 17 October 2011, the Acting Registrar declined to dispense with security. This is an application for review of that decision.

The Acting Registrar’s Decision

[2] In his application for waiver of security, the only ground advanced by Mr Apatu was that he is 70 and financially dependent on New Zealand superannuation payments. The Acting Registrar noted that exceptional circumstances are required to justify waiving security for costs and impecuniosity alone is insufficient. Although he could not comment on the merits of the appeal, the Acting Registrar said that the appeal was not exceptional and raised no issues of public importance or significance. Finally, he observed that security was necessary to protect the respondents in the event that the appeal is unsuccessful. Accordingly, he concluded this was not an appropriate case for waiver of security for costs. Security remained set at $5,560, to be paid within 20 working days from the date of the Acting Registrar’s letter.
[3] Mr Apatu applied for a review of the Acting Registrar’s decision on 7 November 2011, which is outside the 10 working day period provided for in the Court of Appeal (Civil) Rules 2005 (the Rules).[3] In the circumstances, I extend time for filing the application.

Security for Costs - General Principles

[4] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs. On application, the Registrar may vary or waive security “if satisfied that the circumstances warrant it”.[4]
[5] Security for costs will be waived where it is in the interests of justice to do so. There must be some exceptional circumstance to justify waiver.[5] The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security. The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.[6] Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.[7]

Discussion

[6] I consider that the Acting Registrar was right to refuse to dispense with the requirement to pay security for costs. As he found, Mr Apatu’s impecuniosity cannot in itself justify waiver. Mr Apatu has not given any other reason why security should be dispensed with.
[7] While there is no reason to doubt that Mr Apatu honestly intends to pursue the appeal, he has little prospect of success. Mr Apatu’s original notice of appeal was incomprehensible and he was asked to file an amended notice clarifying the grounds relied upon. He has done that. However, the amended notice still fails to identify with any clarity the errors that Joseph Williams J is alleged to have made in the judgment under appeal. In those circumstances, the respondents are entitled to some protection, by way of provision of security, against what must be regarded as a likelihood that Mr Apatu’s appeal will fail and a costs order will be made against him.
[8] A further point is that the appeal relates to a family dispute over the administration of Mr Apatu’s father’s estate. It does not raise issues of public interest.
[9] Where waiver is declined in cases such as this, the amount of security required to be paid is sometimes reduced. The Acting Registrar did not reduce security in the present case, presumably because he considered it inappropriate given the nature of the case and the uncertainty about the basis for the appeal. There is the further consideration that, as I understand it, Mr Apatu has another proceeding on foot in the High Court which may address some of the issues that he is concerned about. In any event, I consider that the Acting Registrar was entitled to reach the conclusion which he did.

Decision

[10] The application for review of the Acting Registrar’s decision as to security for costs is declined. Security for costs of $5,560.00 must be paid into Court within 20 working days of the date of this judgment. There is no order for costs on this application.

Solicitors:
Sainsbury Logan & Williams, Napier for Second Respondent

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[1] Apatu v Apatu HC Napier CIV-2009-441-515, 10 May 2011.
[2] Court of Appeal (Civil) Rules 2005, r 35(6)(c).
[3] Rule 7(3).

[4] Rule 35(6).

[5] Fava v Zaghloul [2007] NZCA 498 at [9].

[6] Creser v Official Assignee CA196/05, 12 June 2006 at [29].

[7] Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].