Hills v Public Trust - [2010] NZCA 401

IN THE COURT OF APPEAL OF NEW ZEALAND
CA208/2010
[2010] NZCA 401
BETWEENKATHLEEN WINIFRED HILLS

Appellant

ANDPUBLIC TRUST

First Respondent
ANDTHOMAS IAN GANNON

Second Respondent
ANDALEXANDRIA CATHERINE MEDCALF

Third Respondent
ANDDOUGLAS GWILLIAM HILLS

Fourth Respondent
ANDDONALD ROSS EAGLE

Third Party

Counsel:S A Grant for Appellant

H Fulton for First Respondent
S R G Judd for Second Respondent
C E A Townsend for Third and Fourth Respondents
T Chubb for Third Party

Judgment:2 September 2010 at 10 am

(On the papers)

JUDGMENT OF HAMMOND J

A Application for review dismissed.
B No order for costs on the review.
CThe time for paying or securing the security for costs as assessed by the Acting Registrar is extended until Friday, 29 October 2010.

____________________________________________________________________
REASONS
Introduction
[1]        This is an application for review of the Acting Registrar’s decision on an application to dispense with security for costs or reduce the amount of security in relation to an appeal to this Court, by the appellant, Kathleen Winifred Hills. I personally have considered the application under r 7(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) and s 61A(3) of the Judicature Act 1908.
The High Court proceeding
[2]        The appeal is against a judgment of Potter J.[1]
[1]      Hills v Public Trust HC Auckland CIV 2008-404-2217, 15 March 2010.
[3]        Ms Hills made an application under the Family Protection Act 1955 for further provision from her deceased mother’s estate. That application was dismissed.
[4]        Ms Hills also advanced claims against the second respondent for wrongful conduct, breach of trust and/or undue influence; and against the second, third and fourth respondents, in conversion. Those claims were all dismissed.
[5]        Ms Hills has appealed to this Court. I will consider the basis of that appeal later in this judgment.
The Acting Registrar’s decision
[6]        Security for costs on the appeal was fixed at $14,220. The appellant then requested a waiver or reduction of this security for costs under r 35(6)(b) and (c) of the Rules.
[7]        The Acting Registrar noted that the grounds of the application were that the appellant’s finances are unsubstantial and due to her impecuniosity she is unable to provide the Court with that level of security. He also noted that it had been submitted that the interests of justice require a waiver or dispensation since, without a waiver or significant reduction, Ms Hills will be unable to pursue an appeal.
[8]        Following the usual practice, the Acting Registrar sought the views of the various respondents. All opposed the appellant’s request. The Acting Registrar said, “They consider the appeal to be without merit, though this is [a] matter I cannot consider in my decision”.
[9]        The Acting Registrar declined to waive or reduce the amount of security. He noted:
However, the appellant has asked, in the event the application for waiver was refused, for an extension of time of four months to enable payment of the security. In the circumstances, and as there was no adverse comment by the respondents, I…

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 Hills v Public Trust

Details

AGLC: Hills v Public Trust [2010] NZCA 401
Case: [2010] NZCA 401
Decision Date: 2 September 2010

CaseChat Overview and Summary

Kathleen Winifred Hills appealed against a judgment of the High Court, which dismissed her application under the Family Protection Act 1955 for further provision from her deceased mother's estate and also dismissed her claims against the second respondent for wrongful conduct, breach of trust and/or undue influence, and against the second, third, and fourth respondents, in conversion. The appeal was dismissed by the Court of Appeal, and Hills applied for a review of the Acting Registrar's decision on an application to dispense with security for costs or reduce the amount of security. The application for review was dismissed, and no order for costs was made on the review. The time for paying or securing the security for costs was extended until 29 October 2010.

The Court of Appeal considered whether the Acting Registrar's decision to require security for costs was appropriate. The Court noted that the appellant's finances were not entirely unsubstantial, and there were alternatives available to her, such as requesting the Public Trust to hold aside a sufficient sum from her share in the estate to meet the security. The Court also found that the basis of the appeal appeared to be weak, as it was essentially an endeavour to persuade the Court to take a different view on many factual issues from that reached by the trial court Judge.

The Court concluded that it was not persuaded that it should intervene in the Acting Registrar's decision to require "usual" security, or in the actual amount ordered. The application for review was therefore dismissed, and there would be no order for costs on the review. The time for payment of the security was extended until 29 October 2010.

Orders