Rabson v Chapman [2013] NZCA 5 (11 February 2013)

Last Updated: 18 February 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA855/2012 [2013] NZCA 5

BETWEEN MALCOLM EDWARD RABSON Appellant

AND WAYNE SEYMOUR CHAPMAN Respondent

Counsel: Applicant in person S Barker for Respondent

Judgment: 11 February 2013 at 11:30am

(On the papers)

JUDGMENT OF RANDERSON J ON APPLICATION TO REVIEW REGISTRAR’S REFUSAL TO DISPENSE WITH SECURITY FOR COSTS

The application for review of the Registrar’s decision declining to dispense with security for costs is dismissed.
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REASONS

[1] On 11 January 2013 security for costs for this appeal was set at $5,880.00. The appellant, Mr Rabson applied under r 35(6) of the Court of Appeal (Civil) Rules 2005 to have security for costs dispensed with or reduced. That application was declined by the Registrar on 28 January 2013. Mr Rabson now seeks a review of the Registrar’s decision under s 7(2) of the Court of Appeal (Civil) Rules and s 61A(3) of the Judicature Act 1908.
[2] In her decision, the Registrar took into account the following matters:

• First no financial information was received in support of the application.
• Even if Mr Rabson was impecunious as he asserted, that was not, by itself, a sufficient reason to justify dispensation.
• There were no exceptional circumstances or any matter of public importance or significance arising in the appeal.
• Although she could not comment on the merits of the appeal, she noted that in this court’s decision of 21 December 2012[1] this court noted that the judgment under appeal was detailed and thorough and that, in the information presently available, the appeal did not seem to be compelling.
• Evidence supplied on behalf of the respondent indicating he was in possession of significant assets at the time possession was taken of a property at 153 Main Road North in December 2012.

[3] In support of the application for a review, the appellant relies on the following points:

• He had earlier been deemed impecunious by the court sufficient to waive the filing fee.
• The Registrar was wrong to say that no current financial details had been provided given the declaration he made a month earlier when applying to waive the filing fee.
• The Registrar should at least have considered a reduction in the amount of security based upon his financial position.
• The Registrar failed to recognise the obvious merit of the appeal.
• The Registrar failed to take into account that the respondent was in breach of a fiduciary obligation and that this had resulted in the appellant’s impecuniosity.
• The interests of justice warranted the grant of the application.
• His right to appeal would be rendered nugatory if the application was not granted.

[4] I have considered all the points raised by Mr Rabson in support of the application for review but I am not persuaded that the application should be granted. The appeal is against an order made by Kós J in the High Court on 10 December 2012 granting the respondent vacant possession of a property in Paraparaumu. The order required Mr Rabson to provide vacant possession eight days after service of the sealed order of the Court. This court heard, on an urgent basis, an application for stay and determined on 21 December 2012 that a stay should be declined. In doing so, the court made the observation already recorded about the merits of the judgment under appeal.
[5] The matters raised by Mr Rabson in support of the application for review focus principally upon his concerns about the underlying court orders dividing relationship property between himself and his former partner. He has already exhausted appeal rights in relation to those orders.
[6] Given the material supplied by the respondent about the property observed to be in the appellant’s possession at the time possession was taken of the Main North Road property (which has not been disputed by Mr Rabson), there are grounds to support the Registrar’s decision that he was not in fact impecunious.
[7] In the circumstances I am not persuaded that there are any exceptional or other circumstances justifying the grant of the application for review. It is dismissed accordingly. Security remains set at $5,880.00 and must be paid prior to the commencement of the fixture for the appeal on 13 February 2013.

Solicitors:
Buddle Findlay, Wellington for Respondent

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[1] [2012] NZCA 621.