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

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.
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).
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.
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).

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.
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.
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.
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.
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.
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…

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 [2017] NZCA 67
Case: [2017] NZCA 67
Decision Date: 21 March 2017 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Angela Janice Harrison appealed a decision by Associate Judge Osborne, who adjudicated her bankrupt. The appeal was heard by French J, who dismissed the application for review of the Registrar's decision to refuse to dispense with security for costs. The court ordered that security for costs in the sum of $6,600 must be paid into Court by 11 April 2017. Miss Harrison, who is self-represented, argued against the requirement to pay security for costs, contending that the appeal was of public importance and that her inability to pay stemmed from the alleged illegal conduct of the respondents.

The central legal issues revolved around whether the Registrar's decision was correct and whether the appeal raised matters of public importance or exceptional circumstances that warranted exemption from paying security for costs. Miss Harrison argued that the Court of Appeal Rules should be overridden by the Insolvency Act 2006, which she claimed conferred a right of appeal without the requirement to pay security. Furthermore, she argued that her appeal was meritorious and raised questions of public importance due to the alleged illegal conduct of the respondents. The court rejected these arguments, finding that there was no inconsistency between the Court of Appeal Rules and the Insolvency Act, and that Miss Harrison's appeal was weak and case-specific, not raising any issues of general or public importance.

French J concluded that the Registrar's decision was correct and in agreement with it. The court found that Miss Harrison was not impecunious and that there were no exceptional circumstances warranting exemption from paying security for costs. The appeal was dismissed, and security for costs in the sum of $6,600 must be paid into Court by 11 April 2017.

Orders