Hill v Maori Trustee [2020] NZCA 219 (5 June 2020)

Last Updated: 12 June 2020

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

CA519/2019 [2020] NZCA 219

	BETWEEN	FREDRICK HILL Appellant
	AND	MĀORI TRUSTEE Respondent

Court:	French and Courtney JJ
Counsel:	Appellant in Person I R Millard QC for Respondent
Judgment: (On the papers)	5 June 2020 at 2 pm

JUDGMENT OF THE COURT

The strike-out application is granted.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] Mr Hill was adjudicated bankrupt on 10 September 2019.^[1] He filed an appeal within time. Security for costs was set at $7,060, to be paid by 6 November 2019. Mr Hill did not pay the security, nor did he apply for the security for costs to be dispensed with. Nor did he file the case on appeal, which was due for filing within three months after the filing of the appeal.^[2]
[2] The appeal was accordingly deemed abandoned in January 2020.^[3] By then, however, the Māori Trustee (the applicant in the bankruptcy proceeding) had filed an application to strike out Mr Hill’s appeal on the ground of non-payment of security for costs under r 37(1) of the Court of Appeal (Civil) Rules 2005 (the Rules), which permits the Court to strike out an appeal if security for costs is not paid by the time payment is due. The Māori Trustee indicated that it wished to proceed with the application to strike out under r 37(1) rather than have the appeal deemed to have been abandoned.
[3] Mr Hill, who is unrepresented, did not file a notice in opposition to the application. He failed to file written submissions as required. He also failed to provide an adequate explanation for not doing so. French J refused his application for an adjournment of the application and made clear that we would proceed to deal with the matter on the papers on 25 May 2020.^[4]
[4] No issue arises as to legal aid. Mr Hill has not given notice of the outcome of any such application under r 36(4) and Legal Aid Services has confirmed that, as at March 2020, Mr Hill had not applied for legal aid.

The strike-out application

[5] An application under r 37(1) will be granted where the appellant has failed to provide security for costs and the appeal has no realistic prospect of success.^[5] In Riccarton Construction Ltd v Coljon Ltd this Court observed that, as a matter of policy, unmeritorious appeals should not put respondents to unnecessary expense and consume scarce judicial resources.^[6] In this situation, a respondent should not be put to the cost of preparing a case in opposition without the protection of security for costs being paid by the appellant.^[7] Conversely, though, if the appeal appears arguable, access to justice ought not to be denied lightly.^[8]
[6] The Māori Trustee submits that there is no merit in Mr Hill’s appeal. It points to Mr Hill’s repeated, unsuccessful attempts to challenge the judgment of 23 February 2015 giving rise to the judgment debt^[9] and his unsuccessful attempt to challenge the bankruptcy notice.^[10] It says that, in these circumstances, Mr Hill’s ongoing efforts to challenge the underlying judgment should be brought to an end by striking out the appeal.
[7] The only document that Mr Hill has filed in the form of a notice of appeal is a document styled “Interlocutory Application pending appeal”. It is evident from this document and the attachments to it that Mr Hill’s complaint relates to the underlying judgment debt on which the bankruptcy proceedings were founded, which was entered by Judge Ross in District Court proceedings in 2015.^[11] Associate Judge Johnston referred to those proceedings in the bankruptcy judgment, noting that the Judge had (1) made an order terminating a lease between the Māori Trustee as lessor and Mr Hill as lessee of a block of land in Mangatainoka, (2) made an order granting the Māori Trustee possession of the land and (3) awarded the Māori Trustee damages of $87,423.33.
[8] Mr Hill asserts that he has cross-claims or counter-claims that exceed the amount of the judgment debt. These claims allege defamation (presumably against the Māori Trustee), fraud by the Māori Trustee and misfeasance by the Crown in relation to the land that was the subject of the District Court proceedings. Mr Hill does not, however, identify any error by the Associate Judge in the bankruptcy proceeding.
[9] It is plain from the history of the litigation that all avenues of challenge of the underlying debt have been exhausted. The Associate Judge canvassed the history of the matter in the bankruptcy judgment. In summary, following the entry of the judgment debt in February 2015:

1. Mr Hill applied unsuccessfully for a retrial of the District Court proceeding;^[12]
2. Mr Hill appealed unsuccessfully from the District Court’s substantive judgment;^[13]

100. the Māori Trustee served a bankruptcy notice on Mr Hill on 29 October 2016, which Mr Hill unsuccessfully applied to set aside;^[14]

4. Mr Hill’s appeal against the refusal to set aside the bankruptcy notice was struck out by this Court for non-payment of security for costs.^[15] His application to recall that decision was declined on 22 August 2019;^[16]
5. the Supreme Court refused Mr Hill’s application for leave to appeal against the Court of Appeal’s judgment;^[17] and
6. Mr Hill filed new proceedings in the High Court against the Māori Trustee seeking damages. The Registrar was directed not to accept the proceedings for filing as they sought to relitigate matters already determined. The outcome of Mr Hill’s challenge to that decision was not known at the time of the bankruptcy judgment.

[10] In the bankruptcy proceedings Mr Hill again raised issues directed at impugning the judgment debt. The Associate Judge declined to reconsider these issues. He noted that Mr Hill could not rely on the cross-claims and counter-claims because they were available to him, and had been raised, in the underlying proceedings.^[18] The Associate Judge reviewed the relevant law and concluded that all the issues that Mr Hill had identified had been the subject of careful scrutiny in the both the District Court and the High Court and that the parties were bound by those determinations. It was therefore inappropriate to revisit the issues.^[19] Nor did the Associate Judge consider that personal matters raised by Mr Hill precluded adjudication.^[20]
[11] There is no apparent error in the Associate Judge’s decision. It is clear to us that Mr Hill’s appeal has no merit. The Māori Trustee has been subjected to a long history of litigation seeking to relitigate the same issues. It should not be required to incur any further expense without the protection of security for costs.

Result

[12] The strike-out application is granted.

Solicitors:
Te Tumu Paeroa, Wellington for Respondent

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^[1] Māori Trustee v Hill [2019] NZHC 2250 [the bankruptcy judgment].

^[2] Court of Appeal (Civil) Rules 2005, r 40(2).

^[3] Rule 43.

^[4] Hill v Māori Trustee CA519/2019, 19 May 2020.

^[5] See Turner v Davis [2012] NZCA 576 at [15]; and Riccarton Construction Ltd v Coljon Ltd [2010] NZCA 430 at [8].

^[6] At [9].

^[7] Reihana v Taupo District Court Registry [2006] NZCA 133; (2006) 18 PRNZ 736 (CA) at [9].

^[8] Riccarton Construction Ltd v Coljon Ltd, above n 5, at 9.

^[9] Māori Trustee v Hill DC Palmerston North CIV-2011-054-533, 10 September 2015.

^[10] Māori Trustee v Hill [2017] NZHC 2377.

^[11] Māori Trustee v Hill, above n 9.

^[12] Māori Trustee v Hill [2015] NZDC 10506.

^[13] Hill v Māori Trustee [2016] NZHC 364.

^[14] Māori Trustee v Hill [2017] NZHC 2377.

^[15] Hill v Māori Trustee [2019] NZCA 243.

^[16] Hill v Māori Trustee [2019] NZCA 381.

^[17] Hill v Māori Trustee [2019] NZSC 3.

^[18] Bankruptcy judgment, above n 1, at [9]–[10], referring to the Insolvency Act 2006, s 17(7).

^[19] At [13]–[16].

^[20] At [19]–[20].