Rabson v Shephard - [2016] NZSC 152

IN THE SUPREME COURT OF NEW ZEALAND

[2016] NZSC 152

BETWEEN	MALCOLM EDWARD RABSON AND RICHARD JOHN CRESER AS TRUSTEES OF THE MALCOLM RABSON FAMILY TRUST Applicants
AND	IAN BRUCE SHEPHARD AND CHRISTINE MARGARET DUNPHY Respondents

Counsel:	Applicant M E Rabson in person
Judgment:	21 November 2016

JUDGMENT OF ELLEN FRANCE J

The applications for review of the Registrar’s decisions declining to
waive the payment of filing fees are dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Rabson has sought reviews of two decisions by the Registrar refusing to waive payment of filing fees each of $1,100 payable on applications for leave to appeal to this Court. The applications are made under s 40 of the Supreme Court Act 2003 and I have approached them by way of rehearing. I have determined that the applications should be dealt with on the papers.

Background

The applicants have filed applications for leave to appeal against two decisions of the Court of Appeal (the first and second decisions).

The first decision of the Court of Appeal

In the first decision, the Court declined to grant an application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 to apply for a hearing date and file the case on appeal.[1] The extension of time was sought in relation to the Trustees’ appeal from a decision of Collins J issuing judgment against Mr Rabson for the sum of $782,531.[2]
[1]Rabson v Shephard [2016] NZCA 446 [Rabson (first CA decision)].
[2]Shephard v Rabson [2015] NZHC 3137 [Rabson (HC)].
Mr Rabson was adjudicated bankrupt in March 2013. The judgment of Collins J had its genesis in the assignment of all claims and causes of action in Mr Rabson’s bankrupt estate to Mr Shephard and Ms Dunphy as liquidators of two companies associated with Mr Rabson. Collins J found the Malcolm Rabson Family Trust (the Trust) owed Mr Rabson $782,531 and the liquidators were entitled to claim that sum from Mr Rabson.
The decision of Collins J turned on deeds of acknowledgment of debt from the Trust to Mr Rabson and his former partner. Before Collins J, Mr Rabson’s case was that the deeds of acknowledgment of debt were an error and that the Trust had repaid the debt. The first point arose from Mr Rabson’s claim the deeds were in error because the money recorded as advances (the proceeds of a Lotto prize win) was that of the Trust. Collins J noted this argument had been rejected in earlier litigation involving Mr Rabson by the High Court[3] and the Court of Appeal.[4] The Judge found the further evidence he heard on this point fell “well short of raising any basis for revisiting the conclusions” reached by the High Court and the Court of Appeal, “even if it were legally possible to do so”.[5]
[3]LG v MER [2010] NZFLR 1001.
[4]R v G [2011] NZCA 459, [2011] NZFLR 1040; and Rabson v Gallagher [2011] NZCA 669.
[5]

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 Rabson v Shephard

Details

AGLC: Rabson v Shephard [2016] NZSC 152
Case: [2016] NZSC 152
Decision Date: 21 November 2016

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the applicants, Malcolm Edward Rabson and Richard John Creser as trustees of the Malcolm Rabson Family Trust, sought a review of the Registrar's decisions declining to waive the payment of filing fees for applications for leave to appeal. The respondents were Ian Bruce Shephard and Christine Margaret Dunphy. The applicants sought leave to appeal two decisions of the Court of Appeal: one concerning the denial of an extension of time to appeal, and the other concerning the refusal to recall a judgment upholding a decision to require security for costs. The legal issues before the court were whether the applicants met the criteria for a fee waiver under the Supreme Court Fees Regulations 2003, specifically whether they were unable to pay the fees or whether the appeals concerned a matter of genuine public interest and would not be commenced or continued without the waiver. The court found that the applicants had not demonstrated that they were unable to pay the fees and that the appeals did not concern matters of genuine public interest. The applications for review were dismissed, and the applicants were required to pay the filing fees.

Orders