Harrison v Harrison
[2016] NZCA 136
•15 April 2016 at 2:30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA144/2015 [2016] NZCA 136 |
| BETWEEN | PAULINE JANICE HARRISON |
| AND | GRAEME ROSS HARRISON AND ADRIENNE HARRISON OFFICIAL ASSIGNEE |
| Court: | Randerson, French and Winkelmann JJ |
Counsel: | Appellant in person |
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 the Court if further directions were required. Wild J recorded the position as he saw it in these terms:
(a)The appellant should now have a reasonable amount of time (six weeks – to 6 November?) to see if she can secure a full grant of legal aid for this appeal.
(b)If she secures that grant, then the requirement for security for costs should be dispensed with.
(c)If she does not, then the first respondents have their r 37(1) right to apply for an order striking out the appeal.
Wild J had two further telephone conferences with counsel on 16 November and 11 December 2015. On each of those occasions, he granted further extensions of time to 11 December 2015 and 12 February 2016 respectively to enable Ms Harrison to obtain a grant of legal aid to pursue the appeal and to enable her to comply with r 43(1) of the Rules. In the second of these minutes, Wild J noted that the extension of time until 12 February 2016 was a “generous further extension”. He advised the parties there would need to be a “quite exceptional reason” before the Court further extended time for compliance.
Finally, after receiving memoranda from counsel, Wild J had a further telephone conference with counsel on 16 February 2016. In a minute issued on that date, the Judge declined to grant a further extension of time pursuant to r 43(2) of the Rules. His reasons as recorded in the minute were:
(a)Security for the costs of this appeal remains unpaid and there is no indication as to whether it can be paid, and if so when.
(b)The appellant cannot comply with r 43(1) until she has paid security for the costs of this appeal: r 37(2).
(c) The appeal appears to me to lack merit.
The Judge directed the Registry to note that the appeal was deemed to be abandoned under r 43 and to advise the parties accordingly.
On 18 February 2016 Ms Harrison sent an email to the President of this Court, the Registrar and other persons. She objected to Wild J’s minute of 16 February 2016. The Registrar of this Court advised Ms Harrison that her email would be treated as an application for a panel of three Judges of this Court to review the minute issued by Wild J. In response to the Registrar’s request, Ms Harrison confirmed she would be representing herself. Mr Zindel has confirmed that this appears to be the case.
Discussion
An order or direction made by a single Judge of this Court may be discharged or varied by a panel of three Judges pursuant to s 61A(2) of the Judicature Act 1908. In considering this application we have had regard to the memoranda Mr Zindel and Mr Parmenter each filed in February 2016 prior to the last telephone conference with Wild J. We have also considered the emails Ms Harrison has sent personally since Wild J’s minute. We have also ascertained through inquiry made by the Registrar to the Legal Services Agency that Ms Harrison was refused any further grant of legal aid on 9 March 2016.
The first and second reasons given by Wild J for his directions continue to apply. It is now over 12 months since the amount payable for security for costs was fixed and security has not been paid. It has now been established that legal aid has been refused. We note that in Wild J’s judgment of 26 August 2015 he recorded that:[4]
(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.
[4]Harrison, above n 3, at [5].
Even now, Ms Harrison does not provide any details of her financial position. Rather, she asserts that she has paid filing fees in excess of $2,000 and demands what she describes as her right to fundamental justice. In his memorandum of 11 February 2016, Mr Zindel confirms that Ms Harrison has paid $22,500 to the Ministry of Justice in respect of security for costs and costs orders made by Toogood J on 1 March 2013 for the High Court proceeding, but it is asserted that $10,000 in additional funds Ms Harrison had lodged with the Official Assignee shortly after adjudication has been frozen pending her bankruptcy. It is said she is not able to pay the balance. According to Mr Zindel’s memorandum, there are no other creditors other than for the amount specified in the bankruptcy notice of $5,102.32. Again, no details of her assets and liabilities are provided. Ms Harrison is seeking the indulgence of the Court and it is incumbent upon her to provide such details.
Addressing Wild J’s third reason (the appeal appearing to lack merit), we agree with this assessment. We note that substantive proceedings in the High Court challenging decisions made by the trustees in respect of the Geard Trust have only been partially determined by Faire J in a judgment issued on 24 November 2015.[5] Ms Harrison had challenged a decision by the trustees to re-settle on a new trust a property at Waiheke Island. Faire J found that the trustees had engaged in self-dealing in respect of that transaction and set it aside. The Judge found that the re-settlement was ineffective with the result that the property remained subject to the Geard Trust. Faire J sustained a caveat lodged by Ms Harrison but left open the question of whether she had any settled beneficial interest in the trust. As far as we are aware, that issue has still not been determined.
[5]Harrison v Harrison [2015] NZHC 2935. It appears this was a separate proceeding from that in which Toogood J delivered his interlocutory judgment of 1 March 2013.
Mr Zindel has submitted on Ms Harrison’s behalf that she has an arguable substantive case against the trustees which ought to be resolved, noting that the Official Assignee has disclaimed Ms Harrison’s interest in the Geard Trust and that it has reverted to her under s 119(2) of the Insolvency Act 2006. If she is unable to bring her substantive proceeding, then it is submitted she may not have a vehicle to determine whether she has a settled interest in the Geard Trust.
Mr Zindel acknowledged that much more focused pleadings would be required if Ms Harrison pursued the High Court proceedings relating to the Geard Trust. We note that Toogood J observed in his judgment of 1 March 2013:[6]
[29] On the face of the relevant documents, there is considerable force in Mr Parmenter’s submission that the plaintiff’s primary claim that the trustees should make a final distribution to her as a final beneficiary cannot succeed. Even if the Court was to find that the defendants had misused their powers as trustees, the appropriate remedy would be to replace them, not for the Court to interfere in the exercise of discretions plainly conferred by the Trust Deed.
[6]Valerie Geard Family Trust, above n 2.
The Judge added:
[31] The defendants’ careful and detailed response to the allegations of misfeasance are to be contrasted with the wide-ranging, unfocused, exaggerated and inherently implausible allegations made by the plaintiff. Unsubstantiated allegations of deceit and misleading conduct by the defendants and legal practitioners, and the attacks on judicial officers, which are contained in the plaintiff’s memorandum, give me no confidence that the plaintiff has a meritorious claim. Furthermore, it is apparent from the approach which the plaintiff has taken to the interlocutory issues which have arisen so far, that she is incapable of addressing the real issues arising in the litigation with any proper focus. …
Ms Harrison’s emails to this Court continue to make wide ranging allegations of the kind that were of concern to Toogood J. She does not substantively address the merits of the appeal against the order making her a bankrupt.
In our view, the real question is not whether Ms Harrison may succeed in High Court proceedings relating to the Geard Trust but whether she is likely to be successful in her appeal against her adjudication in bankruptcy. In that respect, Mr Zindel submitted to Wild J that the bankruptcy proceeding relating to the sum of $5,102.32 was an oppressive exercise of power by the creditors where those creditors were involved in substantive litigation between the parties.
This submission was made at the time of the adjudication and was rejected in Associate Judge Osborne’s detailed judgment.[7] He noted that Toogood J’s judgment of 1 March 2013 had not been appealed and he considered it was not appropriate to re-examine the merits of that judgment in the context of a bankruptcy proceeding. He also rejected Ms Harrison’s allegations of fraud by the trustees and an allegation that the lawyers acting on their behalf had conflicts of interest. Allegations of a breach of natural justice and broader issues of equity and justice were also rejected.
[7]Re Harrison, above n 1, at [23]-[27].
Finally, the Associate Judge noted that Ms Harrison had asserted in her submissions that her failure to pay the costs in terms of the bankruptcy notice amounted to a wilful refusal rather than a financial inability. He recorded that Ms Harrison had submitted to the Court that she was not insolvent. Associate Judge Osborne found that it was inappropriate to act on this bald assertion and that Ms Harrison ought to have given in evidence a reasonably detailed statement of her financial position. She had not done so.
Our review of the relevant materials confirms Wild J’s assessment that the prospects of Ms Harrison’s appeal succeeding are indeed weak. Importantly, the debt relied upon for the bankruptcy arose from a court order which was not the subject of any appeal. Ms Harrison’s appeal must therefore rely on upsetting the exercise of a judicial discretion. We view this as an onerous task in the circumstances.
Result
For the reasons given, we agree with the decisions and directions made by Wild J in his minute of 16 February 2016 and decline Ms Harrison’s application to discharge or vary those orders and directions.
Since we have not called upon the respondents to make any submissions in connection with this application, we make no order for costs.
Solicitors:
Zindels, Nelson for Appellant
Birdsey & Associates, Auckland for Respondents
0
3
0