Tao v Strata Title Administration Limited [2017] NZCA 130 (24 April 2017)

Last Updated: 11 May 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA449/2016 [2017] NZCA 130
BETWEEN	AN LI TAO Appellant
AND	STRATA TITLE ADMINISTRATION LIMITED AND ORS Respondents

Court:	Randerson, Asher and Brown JJ
Counsel:	Appellant in Person C Baker for Respondents
Judgment: (On the papers)	24 April 2017 at 11:00 am

JUDGMENT OF THE COURT

1. The application for an extension of time for filing the case on appeal is declined.
2. There is no order as to costs.

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REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] This is an application by Ms Tao under r 43(2) of the Court of Appeal (Civil) Rules 2005 for an extension of time to file the case on appeal.

Background

[2] In proceedings separate to the present case, Ms Tao appealed against a summary judgment given by Thomas J in favour of the respondents on 27 April 2016 (the substantive proceedings).^[1] Filing fees were waived on the basis of financial hardship, but she did not pay security for costs. Ms Tao made an application to dispense with or reduce security for costs. That application was declined by Deputy Registrar McGrath on 15 July 2016. Miller J declined an application by Ms Tao for review of that decision.^[2] Ms Tao unsuccessfully sought leave to appeal to the Supreme Court.^[3]
[3] In the meantime, Ms Tao sought an extension of time to file the case on appeal in the substantive proceedings on the basis that she needed more time to find legal representation. This Court declined the application.^[4] It found that Ms Tao had ample opportunity to find legal representation. Ms Tao stated in her affidavit, which is the same affidavit filed in support of the present application, that she had sent completed legal aid applications to three Auckland legal aid providers in July 2016, but had not received any response. In the absence of corroborating evidence, the Court inferred that no such applications had in fact been made. The position reached was:^[5]

(a) Ms Tao did not pay security for costs within the time stipulated by r 35(3), nor within the extended time allowed by Miller J. The period within which to pay security for costs has lapsed without the costs being paid. Her obligation to pay security remains outstanding and her efforts to remove or reduce it have failed.

(b) Under r 37(2), because Ms Tao is in default of her obligation to pay security for costs, she is unable to apply for the allocation of a hearing date under r 38(1).

(c) Under r 43(1), an appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file a case on appeal within three months after the appeal is brought. Ms Tao has not complied with that rule and cannot now do so.

[4] Ms Tao now appeals against a costs judgment of Thomas J given in the High Court on 8 August 2016.^[6] In that costs judgment Thomas J held that the respondents were entitled to costs of $48,168 plus a 25 per cent uplift, bringing the total to $60,210. The uplift was applied on the basis that Ms Tao’s behaviour prolonged the trial and added to its expense.
[5] Ms Tao seeks an extension of time to file the case on appeal on the basis that she needs more time to find legal representation, and to resolve issues arising out of her inability to afford security for costs. She attaches an affidavit claiming that she made applications to three Auckland legal aid providers in July 2016 but received no response, a claim that was rejected by the Court of Appeal.^[7] Ms Tao states that she is unable to pay security for costs on the present application.
[6] Ms Tao consented to her application being determined on the papers.
[7] The respondents oppose the application. They argue that Ms Tao has had ample time to organise legal representation. They note the Court of Appeal’s rejection of Ms Tao’s claims that she unsuccessfully sought legal aid in July 2016. They submit that there is nothing in the history of this proceeding to indicate that the granting of the present application would facilitate Ms Tao obtaining legal representation.

Analysis

[8] Rule 43 provides:

43 Appeal abandoned if not pursued

(1) An appeal is to be treated as having been abandoned if the appellant does not apply for the allocation of a hearing date and file the case on appeal within 3 months after the appeal is brought.

(2) The Court, on application, may—

(a) grant an extension of the period referred to in subclause (1); and

(b) grant 1 or more further extensions of any extended period.

(3) An application for the grant of an extension may be made before the expiry of the period to which the application relates or within 3 months after that expiry; but no extension may be granted on an application that is made later than 3 months after that expiry.

(4) This rule overrides rules 5(2) and 6.

(5) If any days in the period commencing on 25 December in one year and ending on 15 January in the next year are comprised in the 3month period calculated in accordance with subclause (1) or subclause (3), that 3-month period is extended by the number of those days.

[9] The purpose of r 43 is to ensure that once a matter has been determined in the High Court, any party wishing to challenge that determination by way of appeal must do so expeditiously.^[8]
[10] Under r 43(1), an appeal must be treated as having been abandoned if the appellant does not apply for a fixture and file the case on appeal within three months after the appeal was brought. Ms Tao’s appeal was brought on 5 September 2016. While she has applied for an extension of time to file the case on appeal within the three-month period, she has not applied for an extension in relation to her obligation to apply for a fixture. The period in which Ms Tao could make an application for an extension of time to apply for a fixture has now lapsed.
[11] We note that Ms Tao’s failure to apply for a fixture arises from her refusal to pay security for costs. Under r 37(2), Ms Tao’s failure to pay security for costs means that she is unable to apply for the allocation of a fixture under r 38(1). Ms Tao was advised of this by Registry.
[12] It has been recognised that some leniency in case management matters must be granted to litigants in person.^[9] However, Ms Tao has accumulated some experience by representing herself in the substantive proceedings. Indeed, the present state of affairs is the same as that which put an end to Ms Tao’s substantive proceeding.
[13] Ms Tao has failed to provide the Court with adequate reasons for the delay. She has had over 10 months to secure legal representation. Her claims that she has tried to do so are unsubstantiated.
[14] Ms Tao’s appeal must therefore be treated as having been abandoned under r 43(1).

Result

[15] The application for an extension of time to file the case on appeal is declined.
[16] Given the contained nature of the legal attendances, we make no order as to costs.

Solicitors:
Price Baker Berridge, Auckland for Respondents

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^[1] Tao v Strata Title Administration Ltd [2016] NZHC 814.

^[2] Tao v Strata Title Administration Ltd [2016] NZCA 437.

^[3] Tao v Strata Title Administration Ltd [2016] NZSC 150.

^[4] Tao v Strata Title Administration Ltd [2016] NZCA 594 at [10].

^[5] At [8].

^[6] Tao v Strata Title Administration Ltd [2016] NZHC 1821.

^[7] See above at [3].

^[8] Schmidt v Ebada Property Investments Ltd [2012] NZCA 452 at [6].

^[9] Rabson v Gallagher [2011] NZCA 204 at [9].