Tao v Strata Title Administration Limited [2018] NZCA 317 (23 August 2018)

Last Updated: 2 September 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA195/2018 [2018] NZCA 317

	BETWEEN	AN LI TAO Applicant
	AND	STRATA TITLE ADMINISTRATION LIMITED First Respondent JIGAR PANDYA Second Respondent BODY CORPORATE 198693 Third Respondent

Hearing:	7 August 2018
Court:	Winkelmann, Brown and Clifford JJ
Counsel:	Applicant in person E St John for Respondents
Judgment:	23 August 2018 at 10 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is declined.
2. The applicant must pay the respondents one set of costs for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Winkelmann J)

[1] Ms Tao applies for an extension of time to file an appeal against two decisions of Thomas J. On 27 April 2016, Thomas J entered summary judgment in favour of the respondents in relation to Ms Tao’s claims against the operators of the relevant unit title development, and declined an application for the appointment of an administrator for the body corporate.^[1] On 8 August 2016, Thomas J awarded increased costs against Ms Tao.^[2]

Background

[2] There is an extensive procedural history to this application. It is unusual in that Ms Tao has previously appealed each of these decisions under CA226/2016 (the summary judgment appeal) and CA449/2016 (the costs appeal).
[3] The summary judgment appeal was first in time.^[3] Ms Tao applied unsuccessfully to have security for costs dispensed with or reduced in the summary judgment appeal. Her application to review that refusal was declined.^[4] Ms Tao then sought leave to appeal to the Supreme Court. That application for leave was declined.^[5] In the course of its decision, the Supreme Court noted:

[3] The judgment of Thomas J contains an extensive review of the applicant’s complaints. There is no obvious error in the Judge’s analysis ... The applicant did not provide the Deputy-Registrar or Miller J with evidence of her impecuniousness and although she has now provided material as to her (limited) income, she has still not addressed her capital position (for instance as to whether she could use her unit as security). She has from time to time referred to her eligibility for legal aid but nothing tangible (in terms of a grant of legal aid) has emerged ...

[4] Ms Tao did not pay the security costs and the summary judgment appeal was treated as abandoned as at 22 August 2016.
[5] In the meantime, Ms Tao appealed against the costs judgment referred to earlier.^[6] Ms Tao sought an extension of time to file the case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005 on the basis that she needed more time to find legal representation and to resolve issues arising out of her inability to afford security for costs. This Court issued judgment on 24 April 2017 declining the extension of time on the grounds that Ms Tao had failed to provide adequate reasons for the delay.^[7] It ordered that the appeal be treated as having been abandoned under r 43(1).^[8]

Relevant principles

[6] An applicant may file afresh an appeal that is treated as abandoned, but an extension of time under r 29A is required. As with all such applications, the overall issue for the Court will be what the interests of justice require. In Almond v Read, the Supreme Court stated that necessitates an assessment of the particular circumstances of the case.^[9] Factors identified as likely to require consideration include:^[10]

• (a) the length of the delay;
• (b) the reasons for the delay;
• (c) the conduct of the parties, particularly of the appellant;
• (d) any prejudice or hardship to the respondent or others with a legitimate interest in the outcome; and
• (e) the significance of the issues raised by the proposed appeal, both to the parties and more generally.

[7] An extension in such circumstances was considered by this Court in Sexton v Rice Craig, in connection with r 29A’s predecessor, r 29(4). As to the approach to such an application, the Court said:^[11]

As a consequence, it will be rare in deemed abandonment cases that the Court will exercise its r 29(4) discretion. The case for the exercise of the discretion will need to be compelling. The Court must reach an overall assessment in the light of all relevant considerations. These will include the explanation for the delay and for the failure to apply for an extension under r 43, and the merits of the proposed appeal. Other factors will also be relevant, for example, prejudice to the respondent. The hurdle is a high one.

[8] Sexton v Rice Craig predated the decision of the Supreme Court in Almond v Read but we consider that the observations made there remain relevant to the assessment of what the interests of justice require in a case such as this. Where the earlier appeal is treated as abandoned due to a failure on the part of the applicant to prosecute that appeal, the applicant’s case for the exercise of the discretion will need to be compelling. This recognises the inevitable delay and prejudice to the respondent which will be caused by allowing a fresh appeal in these circumstances. It also reflects the public interest in the diligent prosecution of proceedings before the courts. This weighs not just the prejudice to the respondents of repeated litigation but also reflects that the system of civil justice is a public good. Those who avail themselves of it must use the processes of the court responsibly and diligently.

Discussion

[9] Ms Tao’s application to commence this fresh appeal is filed two calendar years after summary judgment was entered against her and approximately 20 months after the costs judgment. The earlier appeals were deemed abandoned because of her failure to comply with the payment of security for costs (summary judgment appeal) or to file a case on appeal (costs appeal).
[10] The delay is very substantial. Ms Tao has provided medical records documenting health issues she and her mother had in early 2017 — Ms Tao has caregiving responsibilities for her mother. Ms Tao does not however give evidence that this ill health rendered her unable to prosecute the earlier appeal. In any case, the summary judgment appeal was deemed abandoned as at August 2016, well before the period of time covered by the limited medical evidence we have been given. Nor does the evidence adequately explain the lengthy period of time that elapsed between the abandonment of the earlier appeals, and the making of the present application for an extension of time.
[11] Ms Tao also explains she has had difficulty obtaining legal representation. But given the extent of the delay, a difficulty in arranging legal representation is not an adequate explanation.
[12] Ms Tao’s earlier appeals were treated as abandoned because of her inability to resolve security for cost issues. We asked Ms Tao whether she is now in a position to pay security for costs on the proposed appeal. Initially she replied she would take out a loan or sell her car to enable her to do so. But then she confirmed that she was still trying to find a lawyer who would represent her on legal aid, and that if granted the extension of time, she would apply to the registrar for an order that security for costs be dispensed with.
[13] We have no doubt were we to grant the extension, the respondents would be significantly prejudiced. Two years have now elapsed since the respondents obtained judgment. The respondents have already suffered the cost and uncertainty associated with the earlier appeals. Ms Tao has made clear that were we to grant the extension sought, she would not immediately progress the appeal as she intends to try to find a lawyer to represent her on legal aid, and to apply to for an order that security for costs be dispensed with. This will lead to more delay, and more expense.^[12]
[14] Finally, Ms Tao has not identified any proposed ground of appeal which has any prospect of success. Her proposed arguments are a rerun of the grounds addressed by Thomas J in her summary judgment. As the Supreme Court commented, there is no obvious error in the Judge’s analysis.^[13]
[15] To conclude, we are satisfied that the extension of time sought by Ms Tao should not be granted. Ms Tao has no adequate explanation for the gross delay, to grant the extension will prejudice the respondents, and there is no apparent merit in the grounds Ms Tao seeks to advance. Her application is therefore declined.

Result

[16] The application for an extension of time to appeal is declined.
[17] The applicant must pay the respondents one set of costs for a standard application on a band A basis and usual disbursements.

Solicitors:
Price Baker Berridge, Auckland for Respondents

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

^[2] Tao v Strata Title Administration Ltd [2016] NZHC 1821 [costs judgment].

^[3] The Notice of Appeal against the substantive judgment was filed in this Court on 19 May 2016.

^[4] Tao v Strata Title Administration Ltd [2016] NZCA 437.

^[5] Tao v Strata Title Administration Ltd [2016] NZSC 150.

^[6] The Notice of Appeal against the costs judgment was filed 5 September 2016.

^[7] Tao v Strata Title Administration Ltd [2017] NZCA 130 at [13].

^[8] At [14].

^[9] Almond v Read [2017] NZSC 80 at [38].

^[10] At [38].

^[11] Sexton v Rice Craig [2007] NZCA 200 at [31].

^[12] See r 36 of the Court of Appeal (Civil) Rules 2005 which provides the appellant with a further extension of time in making an application for dispensation of security for costs in circumstances where the appellant has applied for legal aid and this has been declined.

^[13] Tao v Strata Title Administration Ltd, above n 5, at [3].