Roberts v Jules Consultancy Limited [2020] NZCA 308 (23 July 2020)

Last Updated: 29 July 2020

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

CA58/2020 [2020] NZCA 308

	BETWEEN	MICHAEL DOUGLAS ROBERTS Appellant
	AND	JULES CONSULTANCY LIMITED First Respondent JULES LELOIR Second Respondent

Counsel:	B M Easton and HET Thomson for Appellant J K Mahuta-Coyle for Respondents
Judgment: (On the papers)	23 July 2020 at 2.00 pm

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

A The application for review of the registrar’s decision is granted.

2. Order that security for costs payable by the appellant on their appeal is dispensed with.

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REASONS

• [1] The appellant, Michael Roberts, succeeded in his claim for breach of s 14 of the Fair Trading Act 1986 in the High Court.^[1] In a judgment dated 17 December 2019, Thomas J awarded him $93,500 for diminution in value of the apartment at issue plus $25,000 in general damages (“the quantum judgment”).^[2] On 27 February 2020, the Judge awarded him a further $132,386.15 in interest and costs.^[3]
• [2] Mr Roberts appeals the quantum judgment on the broad basis that he was entitled to a higher quantum of damages. The respondents, Jules Consultancy Ltd and Jules Leloi, cross-appeal on the grounds that the appellant’s contributory negligence was higher than the 15 per cent found by Thomas J and that evidence of sales showed little to no diminution in value for apartment units similar to the appellant’s. None of the monies owed have been paid to date and the appellant has gone so far as to serve a statutory demand on the respondents.
• [3] On 5 March 2020 Mr Roberts applied for security for costs to be dispensed with in respect of his appeal on the ground that the respondents owe him an amount far in excess of the costs he could be ordered to pay in this Court.^[4] Any costs award to the respondents could be offset against the amount owed by them.
• [4] On 27 May the Deputy Registrar refused to dispense with security because she did not view non-payment of a recent costs award and judgment sum as disentitling the respondents to the usual protection of security for costs. Nor did she consider this to be an “exceptional” case within the meaning given in Reekie v Attorney-General.^[5] Mr Roberts seeks to review this decision. The respondents have taken no steps to oppose the application.
• [5] This is an unusual situation which does not squarely fit within the paradigm of security for costs cases. Neither party is apparently impecunious, and the appeal cannot be said to be unmeritorious. There is no access to justice issue. The ultimate question remains, however, whether I am of the view that it is right to require the respondents to defend the judgment under challenge without the usual protection as to costs provided by security.^[6]
• [6] The respondents do not dispute the quantum of general damages, interest, or costs awarded. Therefore even if the respondents were to succeed in their cross‑appeal, they would still owe the appellant at least the quantum of general damages, interest, and costs (over $150,000).
• [7] I distinguish the case of Richard Zhao Layers Ltd v Family Court at Auckland, on which the Deputy Registrar relied, as the amount the respondent owed to the appellant in that case was less than the likely costs of the appeal.^[7] There was no ability to set off appeal costs. Here, there is a large sum owed to the appellant which is not in dispute, and that sum far exceeds the $7,060 required for security.
• [8] Were the respondents awarded costs in this Court, that amount could be set off against the sum they owe the appellant. I also take note of the fact the respondents have failed to pay even the undisputed amount despite written and statutory demands from the appellant. In my view it is right that the respondents defend the judgment without the usual protection of security.
• [9] It follows that the application for review of the registrar’s decision is granted.
• [10] I order that security for costs payable by the appellant on their appeal be dispensed with.

Solicitors:
Grimshaw & Co, Auckland for Appellant
P H Mitchell, Wellington for Respondents

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^[1] Roberts v Jules Consultancy Ltd [2019] NZHC 555.

^[2] Roberts v Jules Consultancy Ltd [2019] NZHC 3342.

^[3] Roberts v Jules Consultancy Ltd [2020] NZHC 303.

^[4] Court of Appeal (Civil) Rules 2005, r 35(6)(c).

^[5] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [27]–[28].

^[6] At [31].

^[7] Richard Zhao Layers Ltd v Family Court at Auckland [2015] NZCA 596 at [22].