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

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.
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.
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.

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.
I have personally considered the appellants’ application and the further material provided by them as described below.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Appleton v Tauranga Law

Details

AGLC: Appleton v Tauranga Law [2012] NZCA 418
Case: [2012] NZCA 418
Decision Date: 12 September 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from John Appleton and Natalie Marie Ryan, as trustees of the Appleton Family Trust, against Tauranga Law. The appellants sought to review a decision of the Deputy Registrar declining to waive the payment of a $1,087.50 filing fee for their appeal. Although the fee was subsequently paid, the appellants sought review of the decision to decline the waiver. The application was dismissed by the Court of Appeal.

The key legal issue before the Court of Appeal was whether the decision of the Deputy Registrar to decline the waiver of the filing fee was correct. The appellants argued that the decision should be reviewed on the grounds of alleged undue financial hardship. The Court of Appeal considered the submissions and financial information provided by the appellants, including bank statements and income details.

The Court of Appeal held that the appellants had not demonstrated undue financial hardship in relation to the payment of the filing fee. The appellants had a regular monthly income of around $4,650.00, and their overall asset position did not indicate undue hardship. The Court of Appeal concluded that the decision of the Deputy Registrar to decline the waiver was correct and dismissed the application for review.

The Court of Appeal made no order as to payment of the filing fee as it had already been paid by the appellants.

Orders