Appleton v Tauranga Law

[2012] NZCA 418

IN THE COURT OF APPEAL OF NEW ZEALAND

CA858/2011
[2012] NZCA 418

BETWEEN  JOHN APPLETON AND NATALIE MARIE RYAN AS TRUSTEES OF THE APPLETON FAMILY TRUST
First Appellants

AND  JOHN APPLETON
Second Appellant

AND  TAURANGA LAW
Respondent

Counsel:         D W Grove for Appellants
P J Napier for Respondent

Judgment:      12 September 2012 at 11.30 am

JUDGMENT OF STEVENS J

The application to review the decision of the Deputy Registrar declining to waive payment of the $1,087.50 filing fee is dismissed.

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REASONS

Introduction

1. In a decision of the Deputy Registrar of this Court dated 22 December 2011 waiver of the filing fee on the appeal of $1,087.50 was declined.  Although the filing fee has since been paid, by application dated 24 January 2012 the appellants sought review of the Deputy Registrar’s decision.  The file was referred to me on 5 September 2012.

2. In the decision declining the fee waiver, the Deputy Registrar said:

   The Court of Appeal acknowledges receipt of your documentation on 22 December 2011 … being a Notice of Appeal regarding CIV-2010-070-385, and a waiver form that has been declared but has not provided any other supporting documentation (bank statements etc).

   Your waiver application was based on the grounds of inability to pay the fee.  As no supporting documentation has been supplied, your waiver cannot be granted.

   Also, as in the letter of 4 November 2011 from the Tauranga High Court Registry, your waiver there was refused on the same grounds (copy attached).

   You also have a debt to the Ministry of $9425.40 for court fees in Tauranga, so it would be difficult to pursue a further matter in the Court without first clearing this fee.

3. With respect to the debt to the Ministry of $9,425.40 for Court fees in the High Court, the appellants had previously applied to the Registrar for a waiver, but that application was declined.  An application to have the Registrar’s decision set aside on review was partially successful.  In a judgment dated 22 February 2012 Keane J concluded:[1]

   [26]     To my mind it is within Mr Appleton’s means, though with hardship, to pay the hearing fees he would have incurred in the District Court, $3,625.20, but not more, without undue hardship.  I make an order fixing that lesser sum to be the fee he has to pay, waiving the balance for which he would otherwise be liable.

Waiver of fees

[1]Appleton v Tauranga Law [2012] NZHC 242.

1. The application by the appellants to waive the filing fee in this Court was made under reg 5 of the Court of Appeal Fees Regulations 2001 (the Regulations).  That regulation provides that a Registrar may waive court fees payable by an appellant if satisfied that the criteria in reg 5(2) are met.  Section 100B of the Judicature Act 1908 provides that a Judge of this Court may review any decision of the Registrar made under reg 5.

2. I have personally considered the appellants’ application and the further material provided by them as described below.  Under s 61A(3) of the Judicature Act I may confirm, modify or revoke the decision of the Registrar as I see fit.[2]

The appeal

[2]The effect of a determination that the fee is not to be varied is set out in reg 7(2) of the Court of Appeal Fees Regulations 2001 [the Regulations].

1. The appeal itself is from a judgment of Allan J[3] in which, following a four day hearing, he dismissed the appellants’ claim against their former solicitors, Tauranga Law, seeking to recover a deposit of $112,407 that the appellant Mr Appleton had lost in a failed Blue Chip investment.  Although the Judge had found that the solicitors were negligent in respect of the advice given, he concluded that any such negligence on the solicitors’ part was not causative of Mr Appleton’s loss.

Submissions in support

[3]Appleton v Tauranga Law HC Tauranga CIV-2010-070-385, 12 December 2011.

1. Representatives of the appellants have provided several submissions and financial information in support of the application for review.  These comprise first a letter dated 24 January 2012 in which the appellants’ solicitor referred to the application to review the decision of the Registrar in the Tauranga High Court.  The solicitor added that:  “We apply on behalf of Mr Appleton to review the Court of Appeal decision to waive fees on the same grounds.”  Presumably there should be a “not” inserted before the words “to review”.

2. The second submission comprised a letter dated 1 February 2012 enclosing information concerning Mr Appleton’s five bank accounts, as well as bank statements for three months.  The third submission, dated 16 May 2012,  referred to the judgment of Keane J in which he upheld in part the review of the Tauranga Registrar’s decision.

Decision

1. The sole ground relied upon by the appellants as a basis for the review is alleged undue financial hardship.[4]  That is appropriate as there is no proper basis upon which the appellants could claim to come within the grounds in reg 5(2)(b) of the Regulations.

   [4]      The Regulations, reg 5(3)(b)(iii).

2. It is true that Keane J, on his review of the Tauranga Registrar’s decision, identified aspects of financial hardship by Mr Appleton in bringing the proceeding.  These included features of the proceeding that might not have been anticipated by the appellants at the outset.  But what is relevant to the present review is that by the time the judgment of Keane J was released on 22 February 2012, the appellants had already (on 24 January 2012) paid the filing fee for the appeal in this Court.

3. I have considered the bank accounts provided by the appellants after the Deputy Registrar’s decision was made.  These show that Mr Appleton had a regular monthly salary of around $4,650.00.  In addition there are other unexplained amounts of income, together with various transfers of money into the main account, perhaps from other accounts Mr Appleton, details of which were not provided.  Keane J noted[5] that as at 1 February 2012 the mortgage account was overdrawn in the sum of $238,064.38.  But that figure needs to be compared with the then value of the home as principal asset, namely, $430,000.  Total assets were at a slightly higher figure of $437,000.[6]  Taken together the income and overall asset position of the appellants does not demonstrate any undue financial hardship in respect of the payment of the filing fee on the appeal.

Result

[5] At [24].

[6] At [6].

1. I am satisfied that the decision of the Deputy Registrar not to waive the filing fee of $1,087.50 was correct.  Accordingly I dismiss the application for review under s 100B of the Judicature Act.  As the filing fee has already been paid, no direction as to payment is required.

Solicitors:
Ellis Law, Auckland for Appellants
Keegan Alexander, Auckland for Respondent