Sameer v Conroy Removals Limited
[2018] NZCA 499
•14 November 2018 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA279/2018 [2018] NZCA 499 |
| BETWEEN | MADHU SAMEER |
| AND | CONROY REMOVALS LIMITED |
| Counsel: | Appellant in person |
Judgment: | 14 November 2018 at 12.30 pm |
JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decisions)
AThe application for review of the Deputy Registrar’s decision not to waive the filing fee on the application for extension of time to appeal is dismissed.
BThe application for review of the Deputy Registrar’s decision not to dispense with security for costs for the appeal is granted. Security for costs in the sum of $3,300 must be paid by 12 December 2018.
____________________________________________________________________
REASONS
Introduction
Ms Sameer has made applications for review of two different decisions relating to this appeal. The first is a decision by a Deputy Registrar declining her application for waiver of the filing fee on her application for an extension of time to bring her appeal. The second is a decision by a Deputy Registrar declining her application for a dispensation from payment of security for costs.
Background
Ms Sameer issued proceedings in the Disputes Tribunal seeking to recover monies paid to the respondent Conroy Removals Ltd (CRL) in respect of her goods that had been shipped by Right Move 4U (RM4U) from the United States to New Zealand and an order that those goods be delivered to her. CRL was RM4U’s New Zealand agent to take possession of the goods, clear them through Customs and arrange for delivery to Ms Sameer.
The Disputes Tribunal found there was a valid contract between Ms Sameer and CRL but her claim was unsuccessful and she was found liable to pay CRL $9,045.51 on its counterclaim for unpaid storage fees. Ms Sameer’s appeal to the District Court was unsuccessful and she was ordered to pay costs to CRL of $9,701.[1]
[1]Sameer v Conroy Removals Ltd [2017] NZDC 26138.
On 11 August 2017 CRL issued a bankruptcy notice to Ms Sameer claiming payment of those two amounts. Ms Sameer’s application to set aside the bankruptcy notice was dismissed in a judgment of the High Court dated 17 April 2018.[2] The present appeal is from that judgment.
[2]Conroy Removals Ltd v Sameer [2018] NZHC 698.
Ms Sameer’s appeal was filed on 21 May 2018, three working days out of time. Although an extension of time was initially opposed, on 31 July 2018 her application for an extension of time in which to file an appeal was granted.[3] She was required to pay security for costs of $6,600 or seek dispensation from payment of security for costs by 28 August 2018.
The application for waiver of the filing fee
[3]Sameer v Conroy Removals Ltd CA279/2018, 31 July 2018 (Minute (No 2) of Brown J).
An applicant may apply for waiver of the filing fee under reg 5 of the Court of Appeal Fees Regulations 2001. The Registrar may only waive the fee in the specific circumstances set out in the regulation:
5 Power to waive fees
(1) A person (the applicant) otherwise responsible for the payment of a fee required in connection with a proceeding or an intended proceeding may apply to the Registrar for a waiver of the fee.
(2) The Registrar may waive the fee payable by the applicant if satisfied,—
(a) on the basis of one of the criteria specified in subclause (3), that the applicant is unable to pay the fee; or
(b) that the proceeding,—
(i) on the basis of one of the criteria specified in subclause (4), concerns a matter of genuine public interest; and
(ii) is unlikely to be commenced or continued unless the fee is waived.
(3) For the purposes of these regulations, an applicant is unable to pay the fee sought to be waived if—
(a) the applicant has been granted legal aid in respect of the matter for which the fee is payable; or
(b) the applicant has not been granted legal aid in respect of the matter for which the fee is payable and the applicant—
(i) is dependent for the payment of his or her living expenses on a benefit of a kind specified in any of paragraphs (a) to (e), (h), and (j) of the definition of income-tested benefit in section 3(1) of the Social Security Act 1964; or
(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 Veterans’ Support Act 2014; or
(iii) would otherwise suffer undue financial hardship if he or she paid the fee.
(4) For the purposes of these regulations, a proceeding that concerns a matter of genuine public interest is—
(a) a proceeding that has been or is intended to be commenced to determine a question of law that is of significant interest to the public or to a substantial section of the public; or
(b) a proceeding that—
(i) raises issues of significant interest to the public or to a substantial section of the public; and
(ii) is an appeal against a judgment, decree, or order given or made in a proceeding commenced by an organisation that, by its governing enactment, constitution, or rules, is expressly or by necessary implication required to promote matters in the public interest.
(5) An application under subclause (1) must be made in a form approved for the purpose by the chief executive of the Ministry of Justice unless, in a particular case, the Registrar considers that an application in that form is not necessary.
On 21 May 2018 Ms Sameer applied for a waiver of the filing fee of $1,100 payable in connection with her application for an extension of time within which to file her appeal. Her application invoked both of the grounds in reg 5(2).
The Deputy Registrar’s decision of 11 September 2018 declining her application first addressed the ground of genuine public interest in reg 5(2)(b). Noting Ms Sameer’s contention that the appeal raised issues about international carriage of goods, specifically the Carriage of Goods by Sea Act (US), the Deputy Registrar observed that the appeal is from a decision declining to set aside a bankruptcy notice, the key issue being whether Ms Sameer had a cross-claim that she could not use as a defence in the original proceeding.[4] The Deputy Registrar concluded that the issue would ultimately turn on facts unique to the parties and did not raise any questions of law that may affect or be of interest to the public.
[4]Insolvency Act 2006, s 17.
The Deputy Registrar’s conclusion on this issue was correct. In order to constitute a matter of genuine public interest the proceeding must raise issues of significant interest to the public or to a substantial section of the public.[5] Ms Sameer’s appeal from the decision declining to set aside a bankruptcy notice is not of that character.
[5]Court of Appeal Fees Regulations 2001, reg 5(4).
Apparently for the reason that she had funds in her bank account at the time, Ms Sameer did not tick the box on the fee waiver application that states that she would suffer undue financial hardship from payment of the fee. Nevertheless the Deputy Registrar proceeded to consider whether in terms of reg 5(3)(b)(iii) Ms Sameer was unable to pay the fee because she would suffer undue financial hardship.
After reviewing Ms Sameer’s financial circumstances the Deputy Registrar concluded that, while Ms Sameer might suffer some hardship from payment of the fee, she would not suffer undue financial hardship. In reaching that conclusion the Deputy Registrar applied the principles explained in Boswell v Millar:[6]
[6]The criterion in reg 5(3)(b)(iii) requires not only that the payment of the fee would cause financial hardship, but that the financial hardship would be “undue”. The ordinary meaning of that word is apposite: “going beyond what is appropriate, warranted, or natural; disproportionate, excessive”. Court fees are the price payable by litigants for access to the Courts. The purpose of the administrative mechanism for waiver of fees by the Registrar and review by a Judge is to ensure that the inhibiting effect of the requirement to pay fees on a litigant’s access to justice does not become too burdensome. What is important is the degree of hardship involved. Regulation 5 assumes that an appellant may suffer some element of hardship if obliged to pay fees, but that is not enough. Before relief may be granted the hardship must be “undue”. Another way of putting it is that the hardship should go beyond the ordinary or be greater than what is just and right. This is for the appellant to show.
[6]Boswell v Millar [2013] NZCA 219 (footnotes omitted).
The Deputy Registrar considered that Ms Sameer had funds available to cover the fee, namely $2,900 in a business current account and $3,400 in a bank account in the United States. She further noted that while Ms Sameer had some debt, she was not currently required to repay that. She also referred to the fact that Ms Sameer had a house in the United States but that it was subject to dispute in divorce proceedings.
In her submissions in support of the application for review filed on 8 October 2018 Ms Sameer appears to acknowledge that she did have funds at the material time. She further indicates that if she had paid the fee, she would probably have gone on a benefit which is something she chose not to do. In addition she claims that the delay in the delivery of the Deputy Registrar’s decision on the fee waiver application had prejudiced her for the reason that she would have liked to have had the fee waiver issue reviewed before the issue of a waiver of security for costs was addressed.
On the basis of the evidence as to Ms Sameer’s available funds at the point in time prior to the filing of the appeal which does not appear to be contested, in my view the Deputy Registrar’s conclusion was correct and that the application for a fee waiver was properly declined. I do not accept that Ms Sameer has suffered any prejudice as a result of the lapse of time till delivery of the decision. Indeed she had an extended opportunity to arrange payment of the fee as a consequence.
The application for review is declined. The filing fee is outstanding and must be paid before the appeal can be progressed.
The application for dispensation from security for costs
On 21 August 2018 Ms Sameer applied for security for costs to be dispensed with under r 35(6)(c) of the Court of Appeal (Civil) Rules 2005 (the Rules). Her application was opposed by CRL and was declined by the Deputy Registrar on 16 October 2018. Ms Sameer applies for review by a Judge of that decision under r 7(2) of the Rules.
An application for dispensation from security for costs raises different issues from an application for a waiver of a filing fee. That is because security protects the interests of the respondents who should not be drawn into meritless appeals without some protection from the costs they entail.[7] The Supreme Court in Reekie v Attorney‑General held the test for dispensing with security is whether it would be “right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security”.[8]
[7]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [39].
[8]At [21].
In determining that question the Deputy Registrar considered the issue of Ms Sameer’s ability to pay security and undertook an assessment of the merits of the case and any issues of public interest raised by the appeal.
On the issue of impecuniosity the Deputy Registrar recorded that she had requested a broad range of financial information from Ms Sameer including copies of bank statements and sources of funding, explaining that the Deputy Registrar could only consider information that was also served on the respondent. However Ms Sameer did not agree to serve evidence of her assets (including bank accounts) on CRL. Consequently the Deputy Registrar was unable to consider that information.
While doubting whether Ms Sameer would be able to fund security for costs in the amount of $6,600, the Deputy Registrar stated that she would need to see bank account statements for all accounts available to Ms Sameer (including in the United States) to support Ms Sameer’s contention. As a result Ms Sameer failed to satisfy the Deputy Registrar that she was impecunious.
The Deputy Registrar saw no error in the High Court’s decision. She did not consider the appeal raised issues of public interest. Indeed she considered that the appeal was at least partly vexatious in light of there being some history of Ms Sameer bringing unsuccessful proceedings and failing to meet costs orders.
Ms Sameer’s 68-page notice of appeal is directed in substantial part to the decisions of the Disputes Tribunal and the District Court, which decisions are not the subject of appeal in this Court. The findings of fact in those decisions cannot be impugned on the current appeal. I share the Deputy Registrar’s view that Ms Sameer is attempting to relitigate issues previously determined by the Disputes Tribunal and in the District Court, despite it having been explained to her that those decisions are not under appeal.[9]
[9]Conroy Removals Ltd v Sameer CIV-2017-409-535, 20 November 2017 (Minute of Associate Judge Matthews) at [2] and [5].
I also agree with the Deputy Registrar’s conclusion that those grounds in the notice of appeal that do relate to the decision under appeal do not provide a basis for a genuine challenge to the bankruptcy notice. Ms Sameer does not identify any cross‑claim that could not have been advanced in the original proceedings.
I recognise that it is important to Ms Sameer to avoid bankruptcy and that the Deputy Registrar was correct to be satisfied that the potential benefits to Ms Sameer of the appeal exceeds the potential costs. However the fact is that Ms Sameer’s decision to decline to permit her financial information to be served on the respondent restricted the Deputy Registrar’s ability to take full account of the extent to which she was or was not impecunious.
Ms Sameer has filed extensive written submissions in support of the review of the security for costs decision. However the details of her financial circumstances are not at all clear. It is apparent that she has a property interest in the United States but that steps need to be taken to liquidate funds. Her memorandum filed on 30 October 2018 stated:
150. Alternately, I request that the Court provide a continuance of 3 months so I can secure the release of my assets from the US Court, and then make a deposit. However, in this case I would need further extension of time to then file the case on appeal, and I request that the Court grant me an additional extension (in addition to the extension of time to pay costs).
Furthermore in an email copied to the Court on 30 October 2018 Ms Sameer stated:
I had a successful hearing with the Court in California this morning, and the account that I have mentioned in the documents filed yesterday, is being released to me. I will be buying a house here very soon.
While it appears that Ms Sameer may have access to funds at some point in the future, the fact remains that this matter has now been on foot in this Court for almost six months. The respondent is entitled to have the appeal progressed and to have the issue of security for costs resolved.
Having considered all the matters raised in Ms Sameer’s submissions and taking into account that her cash flow will be affected by the requirement to pay the filing fee, I consider that the just course which provides some measure of security for the respondent is to require Ms Sameer to pay security in the reduced amount of $3,300.
Accordingly, I grant the application for review of the Deputy Registrar’s decision declining to dispense with security for costs. I direct that security for costs is fixed at $3,300 which must be paid by 12 December 2018.
For the avoidance of doubt I do not engage with the request at [150] of Ms Sameer’s memorandum quoted above. That request would necessitate an application under r 43 of the Rules. It is not something that I can address sitting on review of decisions of the Deputy Registrar.
Result
The application for review of the Deputy Registrar’s decision not to waive the filing fee on the application for extension of time to appeal is dismissed.
The application for review of the Deputy Registrar’s decision not to dispense with security for costs for the appeal is granted. Security for costs in the sum of $3,300 must be paid by 12 December 2018.
Solicitors:
Anderson Lloyd, Christchurch for Respondent
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