Harrison

[2019] NZHC 2698

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2006-404-2003

[2019] NZHC 2698

UNDER

The Senior Courts Act 2016

IN THE MATTER

Of application for Review of Registrar’s decision for Waiver/Refund of Fee(s)

IN THE MATTER

Of application for Review of Registrar’s decision for Waiver/Refund of Fee(s) by PAULINE JANICE HARRISON

Applicant

On the papers	At Auckland
Judgment:	24 October 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 24 October 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Application for review of Registrar’s decision – P J Harrison [2019] NZHC 2698 [24 October 2019]

[1]    Pauline Harrison has sought a review of a Registrar’s decision pursuant  to     r 160 of the Senior Courts Act 2016.

[2]    The application has come about because Ms Harrison has belatedly applied for a waiver of fees relating to proceedings brought in 2008 in respect of the estate of Valerie Margaret Geard. Ms Harrison was the applicant in those proceedings, and paid a fee of $600 in respect of the application on 26 March 2008. The application subsequently went to a hearing on 6 August 2008 and was dismissed the same day by Harrison J.1  In  a  decision  dated  16  September  2019  the  Registrar   dismissed  Ms Harrison’s application for a fee waiver/refund on the following basis:

There are no provisions to support the approval of refund as this application has been heard and determined and the filing fee cannot be refunded on any application that has been considered.

Discussion

[3]    Much of Ms Harrison’s application for waiver and refund of the fee paid in respect of the application focused around the substantive issues relating to her proceeding itself and are clearly entirely irrelevant. It is however clear from both the application for waiver/refund that Ms Harrison is currently a superannuitant and based on her date of birth (12 July 1939) would have been one since July 2004. Therefore, pursuant to regulations 18 and 19 of the current High Court Fees Regulations 2013,2 and in particular r 19(b)(ii) that Ms Harrison would have been entitled to a waiver of the fee had she applied for it at the time the fee was paid.

[4]That being the case, r 23 of the regulations is relevant and provides:

Power to refund fees

(1)A Registrar may, on application made to him or her, refund a fee that has been paid if satisfied that—

(a)no application, under regulation 18, for a waiver of the fee was made; and

(b)the fee would have been waived, in accordance with regulation 18, had that application been made; and

1      Harrison v Harrison AK CIV-2006-404-2003, 6 August 2003.

2      These are in substantially the same terms as the High Court Fees Regulations 2001 (“2001 Regulations”) applicable at the date the fee was paid.

(c)the criteria that would have justified that waiver still apply at the date of the application for the refund.

(2)An application under subclause (1) must be made in a form approved for the purpose by the chief executive of the Ministry of Justice unless, in a particular case, the Registrar considers that an application in that form is not necessary.

[5]    For the reasons set out above there can therefore be no dispute that all three of the criteria set out in r 23(1) are met and on the face of it Ms Harrison is therefore entitled to a refund.

[6]    Contrary to the Registrar’s decision there is nothing in r 23 (or indeed the equivalent r 9 of the 2001 Regulations) that precludes an application for a refund because the proceedings have been completed, or indeed the time that has now elapsed.

Decision

[7]    The application for review of the Registrar’s decision is granted. The Registry is directed to refund to Ms Harrison the sum of $600 paid on 26 March 2008.

[8]There is no issue as to costs.

Powell J