Harrison v Harrison - [2015] NZCA 396

IN THE COURT OF APPEAL OF NEW ZEALAND

CA144/2015
[2015] NZCA 396

BETWEEN	PAULINE JANICE HARRISON Appellant
AND	GRAEME ROSS HARRISON AND ADRIENNE HARRISON Respondents
AND	OFFICIAL ASSIGNEE Additional Party

Counsel:

Appellant in Person
R O Parmenter for Respondents

Judgment:

(On the papers)

26 August 2015 at 3.30 pm

JUDGMENT OF WILD J
[Review of Registrar’s decision refusing to dispense with security for costs]

AThe application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.
BThe applicant is to pay the sum of $5,880 by way of security for costs by Thursday 24 September 2015.

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REASONS

The appellant, Ms Harrison, seeks review under s 7(2) of the Court of Appeal (Civil) Rules 2005 of a decision of the Registrar declining an application to dispense with security for costs.
Ms Harrison’s substantive appeal is against the 24 February 2015 judgment of Associate Judge Osborne declining her application for orders suspending her adjudication as a bankrupt.[1] Security for the costs of the appeal was fixed on 26 March at $5,880. Ms Harrison applied to have security for costs dispensed with. The Registrar declined this application in a decision on 12 May, and required security to be paid by 9 June.
[1]Harrison v Harrison [2015] NZHC 254.
On 10 June Ms Harrison applied for review by a Judge of the Registrar’s decision. Through an oversight in the Registry, this application was not referred to me until 21 August.
Since 10 June, Ms Harrison has also applied for an extension of time to file her case on appeal and apply for the allocation of a hearing date. The respondents are prepared to consider consenting to a short extension of time, but only after security for costs is paid. And, of course, Ms Harrison cannot apply for the allocation of a hearing date under r 38(1) while she remains in default of her obligation to pay the security for the costs of this appeal. I am therefore dealing with Ms Harrison’s review application urgently.

The Registrar’s decision

The Registrar gave the following reasons for declining Ms Harrison’s application:
(a)Ms Harrison had not claimed impecuniosity as a ground for her application, and had therefore provided no evidence of her financial situation.
(b)The Registrar presumed Ms Harrison has the financial means to pay the security for costs fixed in this Court, based on the amounts she had deposited with the High Court at Auckland and the Official Assignee: Ms Harrison has deposited $22,500 for security for costs in the High Court and $10,000 with the Official Assignee.
(c)The merits of the appeal are weak.
(d)The financial benefits of pursuing the appeal are not outweighed by the costs.
(e)The circumstances of the appeal are not exceptional, and no matter is raised of public importance or significance.
(f)This Court cannot direct funds held by other entities to be used to offset security for costs required in this Court (Ms Harrison had said the money held by the Official Assignee should be…

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 Harrison v Harrison

Details

AGLC: Harrison v Harrison [2015] NZCA 396
Case: [2015] NZCA 396
Decision Date: 26 August 2015 at 3.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with an appeal by Pauline Janice Harrison against Graeme Ross Harrison and Adrienne Harrison. The central dispute revolved around the refusal by the Registrar to dispense with security for costs in relation to the substantive appeal Ms Harrison had filed against a prior judgment by Associate Judge Osborne. Ms Harrison's appeal sought to suspend her adjudication as a bankrupt. The Official Assignee was also involved in the proceedings as an additional party.

The legal issues before the Court of Appeal primarily concerned whether the Registrar's decision to refuse the application to dispense with security for costs was justified. The Court needed to assess the merits of Ms Harrison's arguments, her financial situation, and the public interest in allowing the appeal without the protection of security for costs. The Court also needed to consider the implications of Ms Harrison's assertion of qualifying for legal aid, which was not before the Registrar when the decision was made.

The Court of Appeal upheld the Registrar’s decision, finding that Ms Harrison had not provided sufficient evidence of impecuniosity or exceptional circumstances to warrant dispensing with security for costs. The merits of the appeal were deemed weak, and the financial benefits of pursuing the appeal were not considered to outweigh the costs. Furthermore, the Court determined that there was no matter of public importance or significance that justified the respondents defending the judgment without the protection of security for costs. The Court also noted that Ms Harrison's assertion of qualifying for legal aid did not alter her obligation to provide security for costs, as she had not formally applied for legal aid or relied on impecuniosity in her application.

As a result, the Court dismissed Ms Harrison's application to review the Registrar's decision. Ms Harrison was ordered to pay the sum of $5,880 by way of security for costs by Thursday, 24 September 2015.

Orders