De Vries v Bartercard Exchange Limited - [2017] NZCA 142

IN THE COURT OF APPEAL OF NEW ZEALAND

CA676/2016
[2017] NZCA 142

BETWEEN	ANTHONY HARRY DE VRIES Appellant
AND	BARTERCARD EXCHANGE LIMITED Respondent

Counsel:

Appellant (in person)
D G Dewar for Respondent

Judgment:

(On the papers)

28 April 2017 at 3.00 pm

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

AThe application for an extension of time to bring an application for dispensation of security for costs is granted.
BThe application for review of the Deputy Registrar’s decision not to waive the filing fee for the appeal is dismissed. The application for review of the Deputy Registrar’s decision not to dispense with security for costs for the appeal is also dismissed.

____________________________________________________________________

REASONS

Introduction

Mr De Vries has made two applications for review of two different decisions relating to this appeal. The first is a decision by a Deputy Registrar declining his application for a waiver of the filing fee for this appeal. The second is a decision by a Deputy Registrar declining his application for a dispensation with security for costs. His appeal is against the refusal to set aside a bankruptcy notice by Associate Judge Smith in the High Court.[1]
[1]De Vries v Bartercard Exchange Limited [2016] NZHC 2874.
Mr De Vries has also applied for an extension of time to bring the application for dispensation of security for costs, as it was filed one day outside the 20 working day timeframe.[2] Mr De Vries filed the application at 11:11pm on 13 February 2017, which is clearly after the working day ended at 5:00pm; the application must thus be treated as having been received the next working day, 14 February. Since the appeal was filed on 23 December 2016, 13 February was the last working day that the application could have been filed.
[2]Court of Appeal (Civil) Rules 2005, r 35(7).
However, in the circumstances, particularly the small delay in filing the application for dispensation and the corresponding lack of prejudice to the respondent, I grant the application for an extension of time.

The Application for Waiver of the Filing Fee

An applicant may apply for waiver of the filing fee for an appeal under r 5 of the Court of Appeal Fees Regulations 2001. The Registrar may only waive the fee in specific circumstances as set out in the rule, which are that:
5 Power to waive fees
(1)A person (the applicant) otherwise responsible for the payment of a fee required in connection with a proceeding or an intended proceeding may apply to the Registrar for a waiver of the fee.
(2)The Registrar may waive the fee payable by the applicant if satisfied,—
(a)on the basis of one of the criteria specified in Subclause (3), that the applicant is unable to pay the fee; or
(b) that the proceeding,—
(i)on the basis of one of the criteria specified in subclause (4), concerns a matter of genuine public interest; and
(ii)is unlikely to be commenced or continued unless the fee is waived.
(3)For the purposes of…

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.

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Details

Case: [2017] NZCA 142
Decision Date: 28 April 2017 at 3.00 pm

CaseChat Overview and Summary

The appeal in the matter of De Vries v Bartercard Exchange Limited was brought by the appellant, Anthony Harry De Vries, against the respondent, Bartercard Exchange Limited. The dispute pertains to the refusal of the High Court to set aside a bankruptcy notice issued by Bartercard against De Vries. This decision was appealed to the Court of Appeal of New Zealand, where De Vries sought a waiver of the filing fee, dispensation from security for costs, and an extension of time to bring the latter application. The court was required to decide whether to grant the waiver of the filing fee, the dispensation from security for costs, and the extension of time for the latter application.

The court found that the application for waiver of the filing fee was not justified based on the appellant's financial circumstances or the public interest. The appellant did not provide sufficient evidence to demonstrate that he would suffer undue financial hardship if he paid the fee, and the appeal did not concern a matter of genuine public interest. The court also found that the application for dispensation from security for costs was not justified, as the appeal did not appear to be particularly strong, and the respondent's interests needed protection from the costs of the appeal. The court granted the extension of time for the application for dispensation of security for costs, as the delay in filing was minor, and the respondent was not prejudiced by the late filing.

The court's decision was that the application for an extension of time to bring an application for dispensation of security for costs was granted. The application for review of the Deputy Registrar's decision not to waive the filing fee for the appeal was dismissed, as was the application for review of the Deputy Registrar's decision not to dispense with security for costs for the appeal. The security for costs remained fixed at $6,600 and must be paid by 26 May 2017.

Orders