Smith v Plowman - [2021] NZHC 3223

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-1102

[2021] NZHC 3223

UNDER The Property Law Act 2007

IN THE MATTER OF

A Breach of [Lease] Contract

BETWEEN

DENNIS ARTHUR SMITH

Appellant

AND

IAN JAMES PLOWMAN

First Respondent

NIKAU GROVE NURSERY LMITED
Second Respondent

HELEN IRENE MITCHELL

Third Respondent

On the papers

Counsel:

Appellant in person

W E Andrews for the Respondents

Judgment:

29 November 2021

JUDGMENT OF CAMPBELL J

(Application for leave to appeal)

This judgment was delivered by me on 29 November 2021 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

SMITH v PLOWMAN [2021] NZHC 3223 [29 November 2021]

[1] The appellant, Mr Smith, applies for leave to appeal my decision, in a judgment of 1 October 2021, declining Mr Smith’s application to review a decision of a Deputy Registrar declining Mr Smith’s application for waiver of a filing fee. My decision was made on an interlocutory application, so Mr Smith requires leave to appeal under s 56(3) of the Senior Courts Act 2016 (the Act).

Background: my decision declining to review Registrar’s decision

[2] Mr Smith’s request to the Registrar for a fee waiver was made under reg 18(2)(a) of the High Court Fees Regulations 2013. Regulation 18(2)(a) empowers a Registrar to waive a fee if satisfied, on the basis of one of the criteria specified in reg 19, that the applicant is “unable to pay the fee”. Of the various criteria specified in reg 19, it was evident from Mr Smith’s request that he relied on being “dependent for the payment of his or her living expenses on … jobseeker support”. Mr Smith provided a copy of a letter from the Ministry of Social Development confirming he had been regranted jobseeker support from 24 August 2021.

[3] The Deputy Registrar declined Mr Smith’s request. She said Mr Smith’s previous requests for fee waivers were declined on the basis that Mr Smith had other significant means. She referred to two minutes in this proceeding, one by Powell J dated 27 July 2021 and the other a minute that I issued on 11 August 2021. The Deputy Registrar said she was required to follow the decisions of High Court Judges.

[4] Mr Smith applied to review the Registrar’s decision. He said the decision would cause him “unreasonable difficulties”. He said the litigation began in the District Court in 2018 and at all times in that Court, and initially in this Court, he had claimed and been granted a fee waiver on the ground he is a beneficiary. He said nothing had changed, except that despite providing evidence of his financial status “a High Court judge has determined with no supporting evidence that [Mr Smith] ‘suddenly’ can afford court fees”.

[5] In my decision, I said the question was (on what was a de novo review) whether I was satisfied that Mr Smith was, on the basis of one…

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 Smith v Plowman

Details

AGLC: Smith v Plowman [2021] NZHC 3223
Case: [2021] NZHC 3223
Decision Date: 29 November 2021

CaseChat Overview and Summary

In the case of Smith v Plowman, the appellant, Dennis Arthur Smith, sought leave to appeal a decision by Campbell J that declined his application to review a decision of a Deputy Registrar declining his application for a waiver of a filing fee. The Deputy Registrar had declined Mr Smith’s request on the basis that Mr Smith had other significant means, and Campbell J upheld that decision, finding that Mr Smith had control over substantial amounts of gold and silver and could provide security for costs. Mr Smith argued that he was unable to pay the fee, and that the court failed to distinguish between him and the trust. However, Campbell J found that Mr Smith had not shown an arguable error in the decision or that any such error was of sufficient importance to warrant the cost and delay of an appeal. Campbell J held that Mr Smith had control over substantial assets, and that he had not shown that he would be unable to pay the fee if he did not obtain a fee waiver. Therefore, Mr Smith’s application for leave to appeal was declined.

Campbell J considered the principles governing applications for leave to appeal interlocutory decisions, and held that Mr Smith must satisfy the court that there is an arguable error of law or fact, and that the alleged error is of sufficient importance to warrant the cost and delay of the appeal. Campbell J found that Mr Smith had not shown an arguable error in the decision, and that the alleged error was not of sufficient importance to warrant the cost and delay of an appeal. Campbell J held that Mr Smith had control over substantial assets, and that he had not shown that he would be unable to pay the fee if he did not obtain a fee waiver. Campbell J also noted that Mr Smith’s unwillingness to convert the precious metals into money was irrelevant to his fee waiver application and to this application for leave to appeal.

In summary, the court found that Mr Smith had not satisfied the requirements for leave to appeal, and declined his application for leave to appeal. The court held that Mr Smith had control over substantial assets, and that he had not shown that he would be unable to pay the fee if he did not obtain a fee waiver. The court also found that the alleged error was not of sufficient importance to warrant the cost and delay of an appeal. Therefore, the court declined Mr Smith’s application for leave to appeal.

Orders