Boswell v Millar [2014] NZCA 18 (17 February 2014)

Last Updated: 27 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA293/2013 [2014] NZCA 18
BETWEEN	KATHRYN FRANCES BOSWELL Appellant
AND	OWEN ROSS MILLAR Respondent

Counsel:	Appellant in person D S Quinn for Respondent
Judgment: (On the papers)	17 February 2014 at 11 am

JUDGMENT OF ELLEN FRANCE J
(Review of Registrar’s decision)

1. The application for review of the Registrar’s decision refusing to dispense with security for costs is dismissed.
2. Security for costs of $5,880.00 must be paid into Court by 20 March 2014.

____________________________________________________________________

REASONS

Introduction

[1] The appellant brought a proceeding in the High Court in relation to a settlement agreement she had entered into with the respondent. Katz J dismissed the appellant’s claims which were for breach of contract and for rent.^[1] The respondent’s counterclaim for equitable interest on the purchase price or, in the alternative, rent also failed.
[2] The appellant has appealed against the decision of Katz J.^[2]
[3] The Registrar set security for costs in the sum of $5,880. The appellant by letter dated 27 May 2013 sought dispensation from the requirement to pay security. In a letter dated 6 November 2013, the Registrar declined to waive security.^[3] The Registrar ordered that the security of $5,880 be paid by 4 December 2013. The appellant now seeks a review of the decision refusing to dispense with security.

Approach

[4] In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.^[4] An appellant may apply to the Registrar for a waiver and the Registrar may vary or waive security “if satisfied that the circumstances warrant it”.^[5] The circumstances in which security will be waived have been described as follows:^[6]

[7] 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. 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. Impecuniosity alone is not usually sufficient to justify a waiver, but may be a reason to reduce the quantum of security.

Discussion

[5] The primary basis for the appellant’s original application for dispensation was that she was impecunious. On this aspect, the Registrar took into account the

absence of information verifying the appellant’s financial position.⁷ The Registrar also took into account the findings of Stevens J relating to an application for a fee waiver⁸ and certificates of title which showed that the appellant owned four properties. The Registrar was not satisfied the appellant was impecunious. In any event, the Registrar noted impecuniosity on its own was not sufficient to warrant dispensation. Security was seen as necessary to protect the respondent’s position.
[6] In seeking a review of the Registrar’s decision, the appellant says [7]ispensation should have been granted because she is impecunious. The appellant has provided further information[8]as to her financial situation. Her case can be summarised in this way. First, despite her best efforts, she is not in a position to raise or service any further loans. Although she owns properties, she says they are mortgaged. Secondly, other potential sources of income, particularly some calves the appellant took on to raise, have not come to fruition. Finally, the appellant’s work as a relief teacher came to an end in mid-December 2013.
[7] The respondent in opposing the application for review submits that the appellant is not impecunious. Counsel for the respondent submits that on the material provided it is apparent that the appellant owns four properties, with an area totalling 166.31 hectares. It is also submitted that the appellant has equity of over $189,000 in three of those properties (the “hill block”). To reach that figure, the respondent has taken the average of the offers noted by a PGG Wrightson agent in material provided by the appellant and measured that sum against the lending of $310,000 the appellant says is secured against the hill block.
[8] I am not satisfied on the information before me that the appellant is impecunious in the sense contemplated by the authorities relating to security for costs.
[9] I note, first, that the information provided is not complete. For example, as Stevens J noted in the earlier judgment, the appellant’s total asset position is unclear.⁹ Secondly, there appears to be sufficient equity for the appellant to be able to fund security in the sum set. The material before me shows that the appellant owns four properties totalling just over 166 hectares. The titles show all are mortgaged. The appellant says she is unable to secure finance against what she describes as her home property. Further, she says she only has the use of that asset until November 2015. Accepting that and taking the most favourable position to the appellant, the information before me indicates that the hill block has a valuation of at least $490,000. The mortgage over that property is $310,000. That would leave more than sufficient equity on which to raise the sum for security.
[10] Raising additional funding will no doubt cause some hardship for the appellant but it cannot be said she is impecunious for these purposes.
[11] For completeness, I add that I understand the appellant has not sought legal aid because she says she is unwilling to relinquish control over her case.
[12] There are, in any event, other factors that tell against dispensation. The appellant accepts that the appeal does not raise issues of public importance. Further, the merits of the proposed appeal do not appear strong. The key issues in the case turned on the factual determination of the High Court. For example, Katz J found on the facts that the respondent had not breached the duty to cooperate in the obtaining of subdivision consent. Similarly, the Judge rejected the argument that the respondent breached the settlement agreement because he knew that he would not be entitled to a subdivision. The Judge found that the respondent did not know this was the case.
[13] The High Court judgment also dealt with the liability for legal and other costs relating to issues settled prior to trial. Katz J found that these were not losses flowing from the alleged breach of contract. Finally, the Judge dealt with the application for a refund of rental. This turned on the interpretation of the impact of the settlement agreement on some interim Court orders. The Judge found that the interim arrangements had been superseded by the settlement agreement. Again, it is not readily apparent on the information before me why it is said that the Judge was wrong about this.
[14] For these reasons, I uphold the decision of the Registrar to refuse to dispense with security.
Result

[15] The application for review of the Registrar’s decision refusing to dispense with security for costs is dismissed.

[16] Security for costs of $5,880.00 must be paid into Court by 20 March 2014.

Solicitors:
Chatwin Legal Ltd, Hamilton for Respondent

---

^[1] Boswell v Millar [2013] NZHC 703.

^[2] The appeal was brought out of time and the appellant was granted an extension of time and a stay of a costs order made against her: Boswell v Millar [2013] NZCA 519.

^[3] It appears that the delay in dealing with the application for dispensation is explained by reference to issues arising over the payment of the filing fee.

^[4] Court of Appeal (Civil) Rules 2005, r 35(2).

^[5] Rule 35(6).

^[6] Spicer v Credit Link Factors Ltd [2012] NZCA 69 (footnotes omitted); see also Easton v Broadcasting Commission [2009] NZCA 252, (2009) 19 PRNZ 675 at [5]; Fava v Zaghloul [2007] NZCA 498, (2008) 18 PRNZ 943 at [9]; Hills v Public Trust [2010] NZCA 401, (2010) 20 PRNZ 707 at [13]–[15]; Clark v Clark [2013] NZCA 284 at [6]; and Siemer v Judicial Conduct Commissioner [2013] NZCA 334 at [8].

^[7] There was some, limited, financial information provided and some material that had been provided in the context of the appellant’s application for a fee waiver. The appellant says she did not realise that the dispensation application was still under consideration so did not provide further information at that time.

^[8] Boswell v Millar [2013] NZCA 219.

^[9] Boswell v Millar, above n 8, at [12].