Boswell v Millar - [2013] NZCA 219

IN THE COURT OF APPEAL OF NEW ZEALAND

CA293/2013 [2013] NZCA 219

BETWEEN KATHRYN FRANCES BOSWELL Appellant

AND

OWEN ROSS MILLAR Respondent

Counsel:
Appellant in person

D S Quinn for Respondent

Judgment:
(On the papers)

11 June 2013 at 10.00 am

JUDGMENT OF STEVENS J
(Review of Registrar’s decision declining to waive filing fee)

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

____________________________________________________________________

REASONS

Introduction

The appellant, Kathryn Frances Boswell, has applied to review the Registrar’s decision declining to waive the filing fee of $1,087.50. The appeal to this Court is against a decision of Katz J in the High Court dismissing her claims for breach of contract and a claim for refund of rent pursuant to consent orders.[1] Her claims arise in the context of an alleged right to purchase part of the respondent’s land, which she had rented, and a subsequent settlement agreement effecting that purchase.
[1]Boswell v Millar [2013] NZHC 703.
The decision of the Registrar was made under reg 5 of the Court of Appeal Fees Regulations 2001. I have personally considered the application to review the Registrar's decision under s 100B of the Judicature Act 1908. I may confirm, modify or revoke the decision of the Registrar as I see fit.[2]

The Registrar’s decision

[2]Judicature Act 1908, ss 61A(3) and 100B(5).

Upon an application under reg 5 the Registrar may waive a fee connected with a proceeding if satisfied that the appellant is unable to pay the filing fee or the proceeding concerns a matter of genuine public interest and is unlikely to progress unless the fee is waived.[3] Ms Boswell applied for a waiver of the fee on both grounds.
[3]Court of Appeal Fees Regulations 2001, reg 5(2)(a) and (b) [the Regulations].
In a decision of the Registrar dated 15 May 2013 the Registrar advised the appellant as follows:
… your situation does not meet either criteria to have the fee waived. Although financially stretched, you have valuable assets to which you would be able to secure the ability to pay the court filing fee. I am also of the view that, on the material that has been supplied, there is not a question of law that is of significant interest to the public, or to a substantial section of the public, rather the judgment relates to a particular set of facts relating only to the appellant.

Grounds of Review

The appellant now accepts that her appeal is not of significant public interest. This is appropriate. The appeal concerns a private property dispute and appears in large part to dispute the trial Judge’s factual findings.[4] The appellant does, however, challenge the Registrar’s conclusion regarding her ability to pay the filing fee. She contends that she would suffer undue financial hardship if she is required to pay the fee. Further information concerning her financial position has been provided in support of the review.

The law

[4]A proceeding of “genuine public interest”…

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 Boswell v Millar

Details

AGLC: Boswell v Millar [2013] NZCA 219
Case: [2013] NZCA 219
Decision Date: 11 June 2013 at 10.00 am

CaseChat Overview and Summary

Kathryn Frances Boswell sought to appeal the decision of Katz J in the High Court, which dismissed her claims for breach of contract and a claim for refund of rent pursuant to consent orders. Boswell's claims arose from an alleged right to purchase part of Owen Ross Millar's land, which she had rented, and a subsequent settlement agreement effecting that purchase. Boswell applied to review the Registrar's decision declining to waive the $1,087.50 filing fee, made under regulation 5 of the Court of Appeal Fees Regulations 2001. The review was conducted under section 100B of the Judicature Act 1908. The Registrar declined the application for waiver on the basis that Boswell's situation did not meet the criteria for waiver, as she had valuable assets and the matter did not concern a matter of genuine public interest.

The court considered whether the appeal was of significant public interest, which it was not, as it concerned a private property dispute. The court also considered Boswell's contention that she would suffer undue financial hardship if required to pay the filing fee. Boswell provided further information regarding her financial position in support of the review. The court noted that Boswell's financial situation was not as dire as she suggested, as she had significant equity in the property and other assets that could be sold or used as security to raise funds to pay the filing fee. The court found that while Boswell would suffer some financial hardship, it was not undue and dismissed the application for review.

The court's decision to decline to waive the filing fee was based on the fact that Boswell had not demonstrated undue financial hardship and the matter was not of significant public interest. The court found that Boswell's financial situation was not as dire as she suggested and that she had other assets that could be used to raise funds to pay the filing fee. The court dismissed the application for review and Boswell was required to pay the filing fee if she wished the appeal to proceed.

Orders