Harrison v Harrison - [2016] NZCA 136

IN THE COURT OF APPEAL OF NEW ZEALAND

CA144/2015
[2016] NZCA 136

BETWEEN

PAULINE JANICE HARRISON
Appellant

AND

GRAEME ROSS HARRISON AND ADRIENNE HARRISON
Respondents

OFFICIAL ASSIGNEE
Additional Party

Court:

Randerson, French and Winkelmann JJ

Counsel:

Appellant in person
R O Parmenter for Respondent

Judgment:

(On the papers)

15 April 2016 at 2:30 pm

JUDGMENT OF THE COURT

AThe application by the appellant to discharge or vary the decisions and directions given by Wild J on 16 February 2016 is declined.
B There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

This judgment deals with an application by the appellant Ms Harrison to discharge or vary certain orders and directions made by Wild J on 16 February 2016.
By notice of appeal received on 24 March 2015 Ms Harrison filed an appeal against an oral judgment delivered by Associate Judge Osborne on 24 February 2015.[1] In that judgment, Ms Harrison was adjudicated bankrupt and was ordered to pay costs.
[1]Re Harrison, ex parte Harrison [2015] NZHC 254.
It was alleged in the High Court that Ms Harrison had failed to comply with a bankruptcy notice issued in relation to a judgment debt of $5,102.32. This sum was said to be the balance due in respect of a costs award made by Toogood J on 1 March 2013 in proceedings relating to the Valerie Geard Trust.[2] In that proceeding Ms Harrison was one of two plaintiffs and the defendants were Ms Geard’s brother, Mr Graeme Harrison, and his wife, Ms A Harrison.
[2]Valerie Geard Family Trust v Harrison [2013] NZHC 385.
Security for the costs of the appeal was fixed on 26 March 2015 at $5,880. Ms Harrison applied to have security for costs dispensed with. That application was declined by the Registrar in a decision dated 12 May 2015. Ms Harrison applied for review by a Judge of the Registrar’s decision. In a judgment delivered on 26 August 2015, Wild J dismissed the application for review and directed that Ms Harrison pay the security for costs by 24 September 2015.[3] Ms Harrison did not pay the amount fixed for security for costs as directed.
[3]Harrison v Harrison [2015] NZCA 396.
On 25 June 2015 the Registry advised the parties that the appeal was deemed to be abandoned pursuant to r 43(1) of the Court of Appeal (Civil) Rules 2005 (the Rules). Ms Harrison’s response was to file an application seeking an extension of time until 10 September 2015 to file her case on appeal and to apply for the allocation of a hearing date. The application was opposed by the respondents.
On 24 September 2015 the Court was advised by the Legal Services Agency that Ms Harrison had been granted legal aid on an interim basis. Mr S J Zindel was appointed to represent her. By a minute dated 25 September 2015 Wild J noted this development; invited counsel to confer; and directed that counsel revert to…

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 [2016] NZCA 136
Case: [2016] NZCA 136
Decision Date: 15 April 2016 at 2:30 pm

CaseChat Overview and Summary

Pauline Harrison appeals against the decision of Wild J to deem her appeal abandoned and to strike it out on the basis of her failure to pay security for costs. The Court of Appeal dismisses the appeal, holding that the appeal appears to lack merit and that there is no indication that the appellant will be able to pay the security for costs. The Court notes that the appeal was not the subject of any substantive submissions and that the appellant has not provided any details of her financial position. The appeal appears to have little prospect of success, as the order which gave rise to the bankruptcy was not the subject of any appeal. The Court of Appeal declines to discharge or vary the decisions and directions made by Wild J. There is no order for costs.

Orders