Sax v Simpson - [2016] NZCA 3

IN THE COURT OF APPEAL OF NEW ZEALAND

CA388/2015
[2016] NZCA 3

BETWEEN

JANINE DAVINA SAX
Appellant

AND

LUKE ANDREW SIMPSON
First Respondent

LUKE ANDREW SIMPSON AND JANINE DAVINA SAX AS TRUSTEES OF THE LUKE AND JANINE SIMPSON FAMILY TRUST
Second Respondents

Counsel:

Appellant in Person
E M Eggleston for Respondents

Judgment:

(On the papers)

27 January 2016 at 11.30 am

JUDGMENT OF MILLER J
(Review of Registrar’s decision)

AThe applications to review the Registrar’s decision refusing to dispense with security for costs are dismissed.
BSecurity for costs in the sum of $5,880 must be paid into Court within 20 working days of the date of this decision.

____________________________________________________________________

REASONS

Introduction

The appellant, Ms Sax, seeks review under s 7(2) of the Court of Appeal (Civil) Rules 2005 of two decisions of the Registrar dated 30 October 2015 and 2 November 2015 declining an application to dispense with security for costs.
Ms Sax’s substantive appeal is against the 26 June 2015 judgment of Brewer J concerning the use of a house purchased by the Luke and Janine Simpson Family Trust (the Trust).[1] Mr Simpson was successful in all his claims against Ms Sax and the Trust, and Ms Sax was successful in one of her claims against Mr Simpson. As the Judge concluded, however, there were “no winners” in the outcome.[2]

Background

[1]Simpson v Sax [2015] NZHC 1466, [2015] NZAR 1210.

[2]At [71].

The factual background to the proceedings between Mr Simpson and Ms Sax can be found in judgments of both this Court and the High Court. It suffices to say that, Mr Simpson and Ms Sax, having divorced in 2013, have an acrimonious relationship that has led to many Court proceedings between the two of them.
At issue in this proceeding is the occupation and upkeep of a house acquired by the Trust and used by Ms Sax and Mr Simpson as their matrimonial home before their separation. Justice Brewer made three orders in Mr Simpson’s favour. First, he found Mr Simpson was entitled to pursue Ms Sax for occupation rent for a period of 42 weeks during which she occupied the house and excluded him from exercising his right to occupy. That amounted to a sum of $9,450. Second, Brewer J ordered that the Trust pay Mr Simpson $7,168.73, being five per cent interest per annum for the period between 7 June 2013 (on which Mr Simpson had made demand for the repayment of a debt of $356,000 owed to him by the Trust) and 1 November 2013 (the date the debt was repaid to Mr Simpson). Third, the Judge found that Mr Simpson was entitled to be reimbursed $10,133.55 by the Trust for payments made towards the house’s maintenance and interest accrued on those sums.
Ms Sax’s counterclaim against Mr Simpson for occupation rent was also successful. Justice Brewer ordered Mr Simpson to pay Ms Sax $21,982.50 on the basis that he occupied the house to her exclusion for 97.7 weeks.[3]
[3]The two sums…

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 Sax v Simpson

Details

AGLC: Sax v Simpson [2016] NZCA 3
Case: [2016] NZCA 3
Decision Date: 27 January 2016 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Ms. Sax against two decisions of the Registrar, dated 30 October 2015 and 2 November 2015, which declined her application to dispense with security for costs. Ms. Sax’s substantive appeal was against the 26 June 2015 judgment of Brewer J concerning the use of a house purchased by the Luke and Janine Simpson Family Trust. The court found in favour of Mr. Simpson in all his claims against Ms. Sax and the Trust, while Ms. Sax was successful in one of her claims against Mr. Simpson. The Court held there were “no winners” in the outcome. Ms. Sax sought to challenge the decisions of the Registrar to refuse to dispense with security for costs. The primary issue was whether the Registrar had made an error in declining Ms. Sax's application to dispense with security for costs. The Court found that the Registrar had not made any error in her decisions. The Court concluded that there were no exceptional circumstances that warranted dispensing with the requirement to pay security for costs. The Registrar had correctly assessed the merits of the appeal as weak, and there was no public interest in the appeal that would justify requiring the respondents to defend the judgment without the protection of security for costs. The Court dismissed Ms. Sax's application to review the Registrar's decision. The Court ordered Ms. Sax to pay the sum of $5,880 by way of security for costs within 20 working days of the date of the decision.

Orders