Paul v Mead - [2020] NZCA 637

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA219/2020
[2020] NZCA 637

BETWEEN	LILACH PAUL First Appellant BRETT PAUL Second Appellant
AND	FIONA MARGARET MEAD Respondent

Counsel:	N W Taefi for First Appellant No appearance for Second Appellant No appearance for Respondent
Judgment: (On the papers)	10 December 2020 at 10.30 am

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

AThe application for review of the Deputy Registrar’s decision not to dispense with security for costs is granted.
BAn extension of time is granted under r 43 of the Court of Appeal (Civil) Rules 2005 until 4 March 2021 for the filing of the case on appeal and application for a hearing date.

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REASONS

Introduction

The first appellant (Ms Paul), and the second appellant (Mr Paul), formed a polyamorous relationship with the respondent Ms Mead. For some 15 years they lived together in that relationship in a four hectare property purchased in Ms Mead’s name. After the relationship terminated the appellants each sought a share in the property under the Property (Relationships) Act 1976 (the Act). On a question of law by way of case stated from the Family Court, the High Court ruled that the Family Court did not have jurisdiction under the Act to determine the property rights of three persons in a polyamorous relationship.[1]
[1]Paul v Mead [2020] NZHC 666.
On 24 April 2020 the appellants appealed against that judgment. Security for costs was set at $7,060 under r 35 of the Court of Appeal (Civil) Rules 2005 (the Rules). On 22 May 2020 Ms Paul applied under r 35(6)(c) of the Rules for an order dispensing with security for costs.
In a decision dated 3 July 2020 the Deputy Registrar declined the application to dispense with security for costs and directed that security be paid by 17 July 2020.
It appears that both appellants applied for a review of the Deputy Registrar’s decision. However Mr Paul’s appeal was deemed abandoned on 2 September 2020. Accordingly this decision relates only to the review sought by Ms Paul.

Relevant principles

The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney-General.[2] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.[3] The Court explained:
[35] … we consider that the discretion to dispense with security should be exercised so as to:
(a)preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and
(b)prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.
A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a…

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 Paul v Mead

Details

AGLC: Paul v Mead [2020] NZCA 637
Case: [2020] NZCA 637
Decision Date: 10 December 2020 at 10.30 am

CaseChat Overview and Summary

In the appeal of Paul v Mead, Lilach Paul and Brett Paul, the appellants, sought to challenge the decision of the Deputy Registrar to deny their application to dispense with security for costs in relation to their appeal against the Family Court’s ruling that it lacked jurisdiction under the Property (Relationships) Act 1976 to determine the property rights of three persons in a polyamorous relationship. The respondent, Fiona Mead, did not appear or make submissions in this appeal. The primary legal issue before the Court was whether the Court of Appeal should dispense with the requirement for the appellants to provide security for costs, given the public interest nature of the appeal and the potential implications of the statutory interpretation issue involved. The Court examined the relevant principles governing the dispensation of security for costs, particularly the balance between preserving access to the Court of Appeal for impecunious appellants and preventing the use of financial hardship to secure an unfair advantage.

The Court of Appeal reviewed the decision of the Deputy Registrar de novo, considering the relevant factors including the appellants' financial situation, the merits of the appeal, and the potential public benefits of the appeal. The Deputy Registrar had declined to dispense with security for costs, finding that while the appeal had some merit and involved a novel issue of statutory interpretation, the potential benefits did not outweigh the potential costs, particularly given that the appeal was not of comparable public importance to certain precedent cases. The Court of Appeal, however, concluded that the appeal indeed had merit and involved an important issue of statutory interpretation that warranted consideration. Given the test case nature of the appeal and the potential implications for the interpretation of the Property (Relationships) Act 1976, the Court found that this was an appropriate case to dispense with the requirement for the payment of security for costs. The Court also granted an extension of time for the filing of the case on appeal and the application for a hearing date.

The Court granted the application for review of the Deputy Registrar’s decision not to dispense with security for costs and ordered that security for costs was dispensed with. Additionally, an extension of time was granted until 4 March 2021 for the filing of the case on appeal and the application for a hearing date.

Orders