Koyama v Southern Response Earthquake Services Limited [2015] NZCA 472 (5 October 2015)

Last Updated: 14 October 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA197/2015 [2015] NZCA 472
BETWEEN	TATSUHIKO AND AIKO KOYAMA Appellants
AND	SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED Respondent

Court:	Ellen France P, Wild and Cooper JJ
Counsel:	Appellants in Person GSA Macdonald and M K Henaghan for Respondent
Judgment: (On the papers)	5 October 2015 at 10.30 am

JUDGMENT OF THE COURT

1. The appellants’ application for a stay of the appeal is dismissed.

2. The respondent’s application for an order striking out the appeal is allowed. The appeal is struck out.

100. The appellants are to pay the respondent’s costs in the sum of $2,000 plus usual disbursements.

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REASONS OF THE COURT

(Given by Wild J)

[1] The appellants are appealing against Mander J’s decision refusing to amend unless orders relating to the payment of scheduling fees and security for costs and striking out an appeal from the District Court for non-compliance with those unless orders.^[1]
[2] Two interlocutory applications are for decision. The first is an application filed by the respondent on 27 July 2015 for an order striking out this appeal on the ground the appellants have failed to pay the security for costs fixed by due date. That application is under r 37(1) of the Court of Appeal (Civil) Rules 2005.
[3] The second application is not formally made, but is contained in a memorandum filed by the appellants on 21 September. It is an application to stay this appeal until the police complete their investigation and issue their findings on allegations of fraud, forgery and perjury “in regarding to this case”, made by the appellants to the police. The application for a stay is reiterated in a supplementary memorandum filed by the appellants on 29 September. That supplementary memorandum concludes:

[29] The Appellants submit that, since the Police have been investigating the fraud allegation, involving forged documents for the purpose of insurance fraud and judicial fraud, which will certainly affect the outcome of this case, the proceeding in the Court must be stayed until the completion of the police investigation and issuance of the findings on the fraud allegation.

[4] This appeal was accepted for filing on 17 April 2015. Summarised, the grounds of appeal are:

• (a) The judgment of the High Court in Koyama v Southern Response Earthquake Services Ltd striking out the appeal from the District Court was made illegally, in that Mander J convened a telephone conference rather than having a hearing.
• (b) The High Court violated the appellants’ rights to proper discovery and prevented investigation of alleged fraud, forgery and perjury by the respondent by imposing an unless order.
• (c) The High Court violated the appellants’ right to be heard by not granting them leave to amend their notice of appeal (to the High Court).
• (d) Both the High Court and District Court violated the appellants’ right to natural justice.

[5] By application filed on 6 May the appellants requested dispensation from giving security for costs, primarily on the ground that they do not work and have limited means.
[6] In a letter dated 19 May the Registrar requested the appellants to support their dispensation application by providing further information as to their financial position. The Registrar requested that information by 29 May. The appellants did not provide the Registrar with any further information.
[7] Accordingly, on 22 June the Registrar issued a decision setting security at $5,880 (it had originally been fixed at $11,760 on the basis that the notice of appeal incorrectly listed two respondents), and directing that amount be paid by 15 July.
[8] The Registrar’s letter drew the appellant’s attention to their right to seek a review of her decision pursuant to r 7(2).
[9] The appellants did not seek a review of their decision and did not pay the required security for costs.
[10] As mentioned, the respondents filed their strike-out application on 24 July. The appellants have not directly opposed it. They did apply for a stay of their appeal. In paragraph [30] of the supplementary memorandum they filed on 29 September, they appear to oppose the Court dealing with the respondent’s strikeout application on the papers and “seek a postponement of the hearing in the Court of Appeal on 5 October 2015”. The Court dealt with those points in its minute and directions of 29 September.
[11] Dealing first with the appellants’ stay application, we do not consider the grounds are made out. The allegations of fraud and impropriety, as they stood at the time, were referred to by Mander J in the judgment challenged in this appeal:

[25] The appellants have been informed repeatedly that the matters they seek to raise regarding allegations of fraud and improper conduct on the part of the respondent and others, and which they have referred to police and other persons, are not relevant to the hearing of an appeal from the procedural interlocutory rulings. The appellants have not sought to remedy their defaults and have provided no explanation for them.

[12] The allegations were addressed in detail by the respondent in the memorandum filed by its counsel on 26 May.
[13] As we mentioned in our minute of 29 September, the appellants have now broadened their allegations to include several Judges of the District Court, a Judge of the High Court and two Judges of this Court, and staff in the Registries of all three Courts. For example, in their memorandum filed on 21 September the appellants state:

[43] The Appellants received two documents from the Court, which are suspected of forgery: (1) “Minute of White J” (16 June 2015), and (2) “Minute and direction of Wild J” (14 August 2015). These documents require forensic document examination.

(Footnote omitted).

[14] The appellants repeat that allegation in their 29 September memorandum, adding:

[23] ... The documents, bearing the names of White J and Wild J, have not been established as the decisions of White J and Wild J of the Court of Appeal. The Appellants lodged a complaint with the Police, alleging forgery of documents, created in the Court of Appeal.

[15] As the allegations of fraud are implausible and irrelevant to this appeal, the appellants’ application for a stay of this appeal is dismissed.
[16] The respondent’s strike-out application is based on a straightforward failure to pay the $5,880 security for costs fixed by the Registrar by 15 July (and it remains unpaid).
[17] Given that default, the only matter that might save this appeal is if it has real merit. But it does not. It is against a judgment of Mander J striking out the appellants’ appeal to the High Court because of their failure to comply with the following unless order:

Unless the appellants:

• Pay the scheduling fee to the Court; and
• Pay security for costs; and
• File their points on appeal

by 5.00 pm on 20 March 2015 its [sic] appeal will be struck out.

[18] The following are the critical paragraphs in Mander J’s judgment:

[24] The appellants are in deliberate default of the unless order. I am satisfied that they have no intention of complying with the orders. No reason has been put forward as to why security of costs and the scheduling fee have not been paid. These are mechanical requirements which require no expertise. The appellants’ response to their non-compliance has been to seek a stay of their appeal. Despite adverse rulings in respect of successive applications, the appellants’ have refused to comply with their obligations. Further applications have been made ignoring previous rulings.

[25] ... The appellants have not sought to remedy their defaults and have provided no explanation for them.

[26] The only conclusion that can be reached is that their non-compliance is deliberate and that they have no intention of complying with Gendall J’s orders. The appellants are of the view that the appeal should not be heard on 1 April and therefore any extension of the unless order would not be for the purpose of facilitating the hearing of the appeal, or allowing the appellants to be heard on their appeal, but rather to produce the result which the appellants have always sought, that the appeal be deferred indefinitely.

[19] Given that situation, and in the light of the grounds for this appeal, it is devoid of any merit.
[20] Accordingly, the respondent’s application is allowed and this appeal is struck out.
[21] The appellants are to pay the respondent’s costs in the sum of $2,000 together with usual disbursements. That reduced award of costs reflects the fact that these two applications have been dealt with on the papers.

Solicitors:
DLA Piper, Auckland for Respondent

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^[1] Koyama v Southern Response Earthquake Services Ltd [2014] NZHC 537.