Medhi Jaffari and Tracy Jaffari v Livia Grabowski

[2014] NZSC 150

IN THE SUPREME COURT OF NEW ZEALAND

[2014] NZSC 150

BETWEEN	MEDHI JAFFARI AND TRACY JAFFARI Applicants
AND	LIVIA GRABOWSKI Respondent

Counsel:	Applicants in person
Judgment:	22 October 2014

JUDGMENT OF McGRATH J ON REVIEW OF REFUSAL TO WAIVE FILING FEE

The filing fee is waived.

____________________________________________________________________

REASONS

1. The applicants, Mr and Mrs Jaffari, had judgment entered against them in the New South Wales District Court in favour of Mrs Grabowski as executrix of her mother’s estate.  Judgment on liability was entered for AUD 186,480.83.  Subsequently judgment was also entered for costs of AUD 73,077.37.

2. The liability judgment was registered in the High Court of New Zealand under the Reciprocal Enforcement of Judgments Act 1934.  The applicants applied to the High Court to set aside the New South Wales liability judgment.  The High Court refused that application and also gave Mrs Grabowski leave to register the costs judgment.[1]  The High Court decision was upheld by the Court of Appeal.[2]  The applicants now wish to bring a further appeal to this Court.

   [1]Grabowski v Jaffari [2013] NZHC 3417.

   [2]Jaffari v Grabowski [2014] NZCA 399.

3. The present matter concerns the refusal of the Acting Registrar to waive fees on the filing of the application for leave to appeal.  The applicants have sought a review by a judge of that decision under s 40 of the Supreme Court Act 2003.

4. The only arguable ground under which the filing fee can be waived in this case is that under reg 5(3)(b)(iii) of the Supreme Court Fees Regulations 2003.  The ground is that if the fee were not waived the applicant “would … suffer undue hardship if he or she paid the fee”.

5. The regulation requires not only that payment of the fee would cause financial hardship but that hardship would be “undue”, which means excessive.  The applicants say their situation qualifies because their income is sporadic (coming from seasonal homestay board and their modest leech therapy business).  They have credit card debt of $25,000.  They say a statement by the Acting Registrar that they have income of $1,000 a week is wrong.

6. The applicants’ bank statements indicate that loan repayments are their biggest outgoings.  There is no obvious pattern of substantial outgoings which are unexplained.

7. I am satisfied that the applicants’ financial position is precarious.  If the fee is not waived they will go further into debt in order to pay it.  I consider the hardship they would suffer in those circumstances is such as qualifies as undue under the Regulations.

8. For these reasons on review of the Registrar I waive the filing fee in this case.