Appleton v Tauranga Law - [2012] NZHC 242

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2010-070-385 [2012] NZHC 242

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

ANDJOHN APPLETON Second Plaintiff

ANDTAURANGA LAW Defendant

Hearing: On the papers

Counsel: D W Grove for Plaintiffs

Judgment: 22 February 2012

JUDGMENT OF KEANE J

Solicitors:
Ellis Law, Auckland for Plaintiffs

Copy to:
danielgrove@45chancery.co.nz

JOHN APPLETON AND NATALIE MARIE RYAN AS TRUSTEES OF THE APPLETON FAMILY TRUST V TAURANGA LAW HC TAU CIV 2010-070-385 22 February 2012

[1] On 12 December 2011, after a four day hearing, Allan J dismissed the plaintiffs' claim against their former solicitors, Tauranga Law, for a deposit of
$112,407 that Mr Appleton had lost in a failed Blue Chip investment, and a related claim against the third party, a co-trustee in the Appleton Family Trust. Allan J required Mr Appleton to pay the solicitors' costs and the solicitors the co-trustee's costs.

[2] On 22 December 2011 the plaintiffs appealed this decision to the Court of Appeal, contending essentially that Allan J erred in concluding that any negligence on the solicitors' part, and he held they were negligent, was not causative of the plaintiff's loss; that Mr Appleton would have pressed on with the investment in any event.

[3] Then still outstanding were hearing fees for which the plaintiffs remained liable for the four day hearing, $9,425.40, meant to be paid before the hearing. Mr Appleton had applied beforehand for a fee waiver, contending that if he had to meet the fees he would suffer 'undue financial hardship'. In a decision given on 4
November 2011, after the hearing, the Registrar declined that application.

[4] Mr Appleton, now with the assistance of his counsel, applies to have the

Registrar's decision set aside on review.

Decision under review

[5] The Registrar considered that, under Reg 6 of the High Court Fees Regulations 2001, he could only either waive the hearing fees payable altogether or not waive them at all, and though he considered Mr Appleton's position 'marginal', he was not convinced that if Mr Appleton did have to pay the fees he would suffer
'undue financial hardship'.

[6] The Registrar recorded that Mr Appleton had an annual income after tax of

$57,200 and itemised expenditure amounting to $40,691 each year. Mr Appleton's declared assets, the Registrar recorded, were worth $437,000. His principal asset was

his home, $430,000. He declared his liabilities, principally his mortgage, came to

$229,000.

[7] Mr Appleton declared no dependents and the Registrar also took into account that Mr Appleton had himself brought the case in April 2010, nearly 17 months before trial, and could have anticipated this hearing fee liability.

Grounds for review

[8] Firstly, Mr Appleton's counsel contends, any assessment of Mr Appleton's ability to pay the fee must begin with the reason why he brought the case in the first place: his loss of substantial funds following the collapse of the Blue Chip Group,
$112,000. This is a loss…

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] NZHC 242
Case: [2012] NZHC 242
Decision Date: 22 February 2012

CaseChat Overview and Summary

The case before the Court of Appeal was an appeal against a decision of Allan J dismissing the plaintiffs' claim against their former solicitors, Tauranga Law, for a deposit of $112,407 that Mr Appleton had lost in a failed Blue Chip investment, and a related claim against the third party, a co-trustee in the Appleton Family Trust. The plaintiffs appealed the decision on the grounds that Allan J erred in concluding that any negligence on the solicitors' part was not causative of the plaintiff's loss. The plaintiffs also argued that Mr Appleton would have pressed on with the investment in any event. In addition, the plaintiffs sought to have the Registrar's decision to decline their application for a fee waiver set aside on review. The plaintiffs contended that the Registrar had failed to take into account certain items of expenditure, and that Mr Appleton's financial position had worsened since the Registrar's ruling.

The legal issue before the Court of Appeal was whether the Registrar had erred in declining the plaintiffs' application for a fee waiver. The Court of Appeal held that the Registrar had jurisdiction to review his decision and that the issue before the Court was whether Mr Appleton would be unable to pay the fee, or any part of it, because to do so would cause him 'undue financial hardship'. The Court of Appeal found that the Registrar was justified in concluding that Mr Appleton did have an apparent surplus from which to meet the hearing fees without undue hardship. However, the Court of Appeal found that Mr Appleton's counsel had identified items of normal expenditure that Mr Appleton did not disclose and the Registrar was not able to take into account, which suggest that any income surplus is likely to be more slight than appears on the face of the application. The Court of Appeal also found that Mr Appleton's capacity to borrow more now has to be questionable, given that his mortgage account was overdrawn and he had two overdrawn loan accounts.

The Court of Appeal concluded that it was 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. The Court of Appeal made an order fixing that lesser sum to be the fee he has to pay, waiving the balance for which he would otherwise be liable. The Court of Appeal also noted that the plaintiffs' appeal against Allan J's decision was unlikely to succeed, given that the plaintiffs had failed to identify any error in Allan J's reasoning. The Court of Appeal dismissed the appeal and ordered the plaintiffs to pay the costs of the appeal.

Orders