Banks v Grey District Council [2016] NZCA 645 (22 December 2016)

Last Updated: 6 January 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA586/2016 [2016] NZCA 645
BETWEEN	DOUGLAS BANKS First AppellantCHRISTINE SANDRA BANKS Second Appellant
AND	GREY DISTRICT COUNCIL Respondent

Counsel:	Appellants in person J Shackleton and N A Taylor for Respondent
Judgment: (On the papers)	22 December 2016 at 2.30 pm

JUDGMENT OF BROWN J
(Review of Registrar’s Decision)

1. The application to review the Deputy Registrar’s decision declining to dispense with or reduce security for costs is declined.
2. The appellants are to pay the sum of $6,600 by way of security for costs by Friday 3 March 2017.

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REASONS

[1] On 19 December 2016 Mr and Mrs Banks sought review of a decision by Deputy Registrar McGrath pursuant to r 7(2) of the Court of Appeal (Civil) Rules 2005 (the Rules). The decision of the Deputy Registrar, dated 8 December 2016, declined the Banks’ application to dispense with or reduce security for costs in their appeal. It directed that security remained at $6,600 and was to be paid by 26 January 2017.
[2] The appeal itself is against a decision of Associate Judge Matthews in the High Court in which he dismissed the Banks’ applications to have bankruptcy notices, which had been served on them by the Grey District Council, set aside.^[1]
[3] Security for costs should not be dispensed with unless it is right to require the respondent to respond to an appeal brought by an impecunious appellant without the usual protection for costs provided by security.^[2] Where the appeal is one that would not be pursued by a sensible, solvent litigant, there will be no basis for dispensing with security for costs.^[3]
[4] I have reviewed Deputy Registrar McGrath’s decision. For the reasons given by her, I agree that there should be no dispensation or reduction of security for costs. In particular:

• (a) Deputy Registrar McGrath correctly identified and applied the principles laid down by the Supreme Court in Reekie v AttorneyGeneral.
• (b) The Deputy Registrar was unable to conclude that the Banks were impecunious in view of their indication they may be able to provide security by way of a loan. She nevertheless proceeded to consider other factors outlined in Reekie.
• (c) She considered that the appeal did not raise any significant issues of public interest. While the appeal challenged certain aspects of the Council’s processes, the issues ultimately turned on facts unique to the parties and the outcome of the appeal would not affect any other member of the public.
• (d) She found the merits of the appeal to be slim. As there was no issue as to the underlying judgment debt, she recognised that the Banks were required to show very special circumstances before the bankruptcy notices would be set aside on the grounds of potential injustice or abuse of process.
• (e) She found the potential benefits of the appeal may be outweighed by the potential costs, noting that the underlying debts would remain at the Council could simply resolve to recommence the bankruptcy process afresh.
• (f) She considered there were no exceptional circumstances justifying dispensation.

[5] In their memorandum of 19 December 2016 Mr and Mrs Banks indicated that they are exploring the possibility of obtaining legal aid. However, I observe that r 36 of the Rules only provides exemptions from security for costs requirements for appellants who have applied for or been granted legal aid at the time the appeal is brought.
[6] I conclude that Deputy Registrar McGrath’s decision was correct. The application to review the decision refusing to dispense with or reduce security for costs is accordingly declined.
[7] However, given the time of the year, to assist the Banks to explore the prospect of securing a loan to facilitate payment of security for costs, the date for payment is extended to 3 March 2017.

Solicitors:
Simpson Grierson, Wellington for Respondent

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^[1] Grey District Council v Banks [2016] NZHC 2663.

^[2] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [21].

^[3] At [35].