Mawhinney

[2014] NZHC 1999

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1991 [2014] NZHC 1999

IN THE MATTER

of an Application for Review of

Registrar's/Deputy Registrar's Decision for
Waiver/Refund of Fee(s)

PETER WILLIAM MAWHINNEY Applicant

Hearing:	On the papers
Judgment:	22 August 2014

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on  at 10.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Copy for:           Applicant

Re Mawhinney [2014] NZHC 1999 [22 August 2014]

[1]      By application dated 8 August 2014, Mr Mawhinney applies for review of a decision by a Registrar.1   The application is made pursuant to s 100B Judicature Act

1908 and proceeds by way of rehearing.2

[2]      Mr  Mawhinney  had  applied  to  the  Registrar  to  waive  the  fee  otherwise payable on filing an application for review of a decision of an Associate Judge, in this case a decision of Associate Judge Christiansen given on 4 July 2014.3

[3]      A Registrar may waive such a fee if satisfied that the person seeking the waiver is unable to pay the fee.4    The relevant part of regs 18 and 19 High Court Fees Regulations 2013 (“Regulations”) provide:

18       Power to waive fees

...

(2)      The  Registrar  may  waive  the  fee  payable  by  the  person  if satisfied,—

(a)       on the basis of one of the criteria specified in regulation 19, that the person is unable to pay the fee; or

...

19Criteria for determining when person unable to pay fee sought to be waived

For the purposes of these regulations, a person is unable to pay the fee sought to be waived if—

(a)       …; or

(b)      the person—

(ii)      is wholly dependent for the payment of his or her living expenses on New Zealand superannuation under the New Zealand Superannuation and Retirement Income Act 2001 or a veteran's pension under the War Pensions Act 1954; or

(iii)      would otherwise suffer undue financial hardship if he or she paid the fee.

1      Fee Waiver Decision 353/14 of G C Sulliman, Deputy Registrar, High Court at Auckland, dated

1 August 2014.

2      Judicature Act 1908, s 100B.

3      Mawhinney v Commissioner of Inland Revenue (2014) 26 NZTC 21-080, [2014] NZHC 1554.

4      High Court Fees Regulations 2013, reg 18(2).

[4]      The Registrar declined the application for waiver on the ground that he was not satisfied that the applicant for review, being Mr Mawhinney in his capacity as trustee of the Forest Trust (“Trust”), was unable to pay the fee.  Mr Mawhinney had commenced the proceeding before Associate Judge Christiansen in his capacity as trustee  of  the  Trust.    In  support  of  his  application  for  waiver,  Mr Mawhinney supplied information as to his personal financial means, but not as to the Trust’s.

[5]      In support of this application for review, Mr Mawhinney has advanced submissions to the effect that only his personal financial position is relevant, as a trust is not a separate legal entity and must sue or be sued by its trustee(s).  I do not accept the submission that the Trust’s financial position is irrelevant.  The litigation before the Associate Judge was brought for the benefit of the trust.  A trustee who pays an expense, such as a fee payable in litigation brought for the trust’s benefit,

may reimburse themselves from the assets of the trust.5

[6]      Accordingly, the assets of the Trust are relevant to whether the fee could or should be waived.

[7]      Despite that, however, I propose to allow this application.

[8]      In an affidavit sworn on 11 August 2014, Mr Mawhinney states that he is wholly   dependent   for   payment   of   his   living   expenses   on   New   Zealand Superannuation and that the Trust’s only asset is tax Mr Mawhinney believes to be owing by the Commissioner of Inland Revenue, which is the subject of the proceeding in question.  Mr Mawhinney also states that the:

… circumstance of Forest Trust have not changed since the Judgement [sic]

of French J …

[9]      The  reference  to  French  J’s  judgment  is  a  reference  to  Mawhinney  v

Commissioner of Inland Revenue.6    In her decision French J was satisfied that “the

only asset [of the Trust] is the disputed debt at issue in this litigation”.

5      Trustee Act 1956, s 38(2).

6      Mawhinney v Commissioner of Inland Revenue [2014] NZCA 193.

[10]     Of course, the affidavit of Mr Mawhinney to which I have referred was not before the Registrar when he made his decision.  Despite that, I propose to take the affidavit evidence into account and accept it as evidence of the required inability to pay the fee.

[11]     I allow this application for review accordingly.

..................................................................

M Peters J