Harrison v Harrison

[2017] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA14/2017
[2017] NZCA 67

BETWEEN	ANGELA JANICE HARRISON Appellant
AND	GRAEME ROSS HARRISON AND ADRIENNE HARRISON Respondents

Counsel:

Appellant in person
R O Parmenter for Respondents

Judgment:

(On the papers)

21 March 2017 at 11.30 am

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

AThe application for review of the Registrar’s decision refusing to dispense with security for costs is declined.

BSecurity for costs in the sum of $6,600 must be paid into Court by 11 April 2017.

____________________________________________________________________

REASONS

Introduction

1. Miss Harrison has filed an appeal against a decision of Associate Judge Osborne in the High Court adjudicating her bankrupt.[1]

   [1]Harrison v Harrison [2016] NZHC 2854.

2. Security for costs on the appeal was fixed at $6,600.  Miss Harrison who is self-represented wrote to this Court denying liability to pay any security.  Her letter was treated as an application to dispense with payment for security under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005 (the Court of Appeal Rules).

3. In a decision dated 14 March 2017, the Registrar declined to grant dispensation and directed that security of $6,600 was to be paid by 11 April 2017.

4. Miss Harrison wrote to the Court in response to the decision challenging its correctness.  Her correspondence has been treated as an application for review of the Registrar’s decision.[2]

Background to the appeal

[2]Court of Appeal (Civil) Rules 2005, r 7(2).

1. For several years, Miss Harrison and her mother Ms Pauline Harrison have been embroiled in litigation with the respondents, Miss Harrison’s uncle and aunt, over the administration of a trust.

2. The respondents issued a bankruptcy notice against Miss Harrison founded on an unpaid costs order.  Miss Harrison applied unsuccessfully to have the bankruptcy notice set aside.[3]  When she failed to pay the amount required, the respondents then applied to have Miss Harrison adjudicated bankrupt.

   [3]Harrison v Harrison [2016] NZHC 202.

3. On the day before the adjudication hearing, Miss Harrison attempted to file a notice of intention to oppose and a supporting affidavit.  The documents were not accompanied by the filing fee and accordingly were not accepted by the High Court Registry.  Miss Harrison explained she was not in a position to seek waiver of the filing fee because she was financially able to pay it.  She undertook to pay the filing fee later.

4. When the Associate Judge was apprised of the situation prior to the hearing, he directed that the documents be received but on a strictly provisional basis, with the question of whether they should be read reserved for the hearing.

5. At the hearing, the Associate Judge heard arguments from Miss Harrison and the respondents first about whether he should grant her leave to file the documents and secondly the grounds of her opposition to adjudication.  The Associate Judge reserved his decision.

6. In his subsequent judgment, the Associate Judge found the delay in filing the documents was understandable and excusable.[4]  However, he did not consider the grounds of opposition on which Miss Harrison relied had substance.  He therefore made orders refusing Miss Harrison leave to file the documents and granted the application for adjudication on a (formally) unopposed basis.

Analysis

[4]Harrison v Harrison, above n 1, at [21].

1. Miss Harrison advances various arguments in support of her contention that the Registrar’s decision regarding security for costs is wrong.

2. First, she submits that s 414 of the Insolvency Act 2006 being superior legislation overrides the Court of Appeal Rules.  The submission is however misconceived because there is no inconsistency between s 414 and the Court of Appeal Rules.  Section 414 confers the right of appeal to this Court, but it does not exempt an appellant from being required to pay security for costs.  Payment of security for costs is a normal incident of bringing an appeal.  Access to justice issues may of course arise if an appellant is impecunious but Miss Harrison does not assert that she is impecunious.

3. Secondly, Miss Harrison submits she should not be required to pay security for costs because her appeal is meritorious and raises questions of public importance.  She says further that it is the illegal conduct of the respondents and others that has resulted in her being adjudicated bankrupt in the first place.

4. The main grounds of Miss Harrison’s appeal are that she was denied a fair hearing by Associate Judge Osborne and that the costs order was unlawful.

5. I accept that the appeal is extremely important to Miss Harrison personally.  However, it is very case-specific and does not raise any issue of general or public importance.  I also agree with the Registrar that the appeal is weak.  Although the Associate Judge formally made orders denying leave to be heard, he did informally hear from Miss Harrison and examine the substantive merits of her opposition.  I also agree with the Registrar that arguments about the validity of the costs order are irrelevant, Miss Harrison having failed to have the bankruptcy notice set aside.

Conclusion

1. I am satisfied the Registrar has not made any error in her decision and it is a decision with which I agree.  Miss Harrison is not impecunious and even if she were there are no exceptional circumstances.  The appeal is weak and does not raise any issue of public interest.

2. The application for review of the Registrar’s decision refusing to dispense with security for costs is declined.

3. Security for costs in the sum of $6,600 must be paid into Court by 11 April 2017.

Solicitors:
Birdsey & Associates, Auckland for Respondents