Smith v Plowman

[2022] NZCA 170

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA703/2021
 [2022] NZCA 170

BETWEEN	DENNIS ARTHUR SMITH Appellant
AND	IAN JAMES PLOWMAN First Respondent
AND	NIKAU GROVE NURSERY LIMITED Second Respondent
AND	HELEN IRENE MITCHELL Third Respondent

Court:	Miller and Dobson JJ
Counsel:	Applicant in person W E Andrews for Respondents
Judgment: (On the papers)	9 May 2022 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. This judgment responds to an application for leave to bring an appeal against an interlocutory decision of the High Court declining Mr Smith’s application to review a Deputy Registrar’s decision to decline a fee waiver.[1] Campbell J subsequently declined leave to appeal, [2] and Mr Smith now brings the present application.[3]

   [1]Smith v Plowman [2021] NZHC 2618 [Review decision].

   [2]Smith v Plowman [2021] NZHC 3223 [Leave decision].

   [3]Senior Courts Act 2016, s 56(5).

2. The essential question is whether the Judge was right to conclude that Mr Smith has failed to show he is without resources to pay a filing fee.  Mr Smith told the Judge that he had access to assets in the form of gold and silver, and he also stated that he could provide as much security as the Court wanted in the form of silver.[4]  But he argued that he held those assets as trustee and lacked access to cash.[5]  He says he is a beneficiary.[6]

   [4]Review decision, above n 1, at [6] and [8].

   [5]At [7].

   [6]At [7].

3. The principles were summarised in Tomar v Tomar and we need not restate them.[7]  In light of what Mr Smith told the Judge, we do not think there is an arguable error of fact; the Judge rightly concluded, based on what Mr Smith himself plainly said, that assets that can be converted to money are available to him for purposes of the litigation.  If they are available to pay security, they are available to pay a filing fee.  In any event, the issue is not of general or public importance warranting the attention of this Court.  It is an issue peculiar to Mr Smith’s personal circumstances and manifestly does not justify leave.  As Campbell J noted when declining leave, there is no reason to think that Mr Smith’s appeal from the District Court would be unable to proceed if he is required to pay the filing fee.[8]

   [7]Tomar v Tomar [2021] NZCA 419 at [6]–[7], referring to Finewood Upholstery Ltd v Vaughn [2017] NZHC 1679 at [13] and Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].

   [8]Leave decision, above n 2, at [23].

4. The application for leave to appeal is declined.

Solicitors:
Vodanovich Law, Auckland for Respondents