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 of the criteria specified in reg 19, “unable to pay the fee”. I had regard to the contents of the memoranda that Mr Smith had filed (even though those were not in the form of affidavits). I accepted,

based on those memoranda, that Mr Smith was on jobseeker support and had minimal immediate cash resources. Nonetheless, I was not satisfied Mr Smith was unable to pay the fee for which he sought a waiver. This was because in one of his memoranda Mr Smith had said:

(a)He had access to substantial amounts of gold and silver.

(b)He could provide as much security as the court wanted “in terms of silver”.

(c)He could control assets to provide security. These assets “are not mine; they are owned by a trust”. Nonetheless, Mr Smith emphasised that he controlled and could provide those assets.

[6]       Accordingly, I declined Mr Smith’s application to review the Deputy Registrar’s decision.

Mr Smith’s application for leave to appeal

[7]       Mr Smith initially sought to appeal my judgment directly to the Court of Appeal. His papers were not accepted by the Registrar of that Court on the ground that Mr Smith first had to seek leave to appeal from this Court under s 56(3) of the Act. Mr Smith then filed in this Court a document dated 1 November 2021 entitled “Appeal of High Court Judgment Regarding Fees Waiver”. Mr Smith advised the registry that this document should be treated as an application for leave to appeal under s 56(3).

[8]       I made directions for the parties to file submissions on Mr Smith’s application. I asked Mr Smith to advise whether he sought an oral hearing of the application. The parties filed submissions. No party sought an oral hearing.

[9]       Mr Smith says I erred in declining to review the Deputy Registrar’s decision. He says registrars in both the District Court and High Court have previously accepted applications for fee waivers. He says the fact that a trust offered precious metals to

the Court as security for costs does not mean that he is able to pay court fees. He says I failed to distinguish between the trust and Mr Smith.

[10]     Mr Smith also says that my judgment “failed to address the aspect of the original Appeal being out of time”.

[11]     Mr Smith’s submissions do not address the principles governing applications for leave to appeal under s 56(3) of the Act.

[12]     The respondents oppose the grant of leave. They say there was ample evidence for me to conclude Mr Smith had the means to pay the fee. The evidence came from Mr Smith himself. He had told the Court he had control over, and access to, substantial amounts of gold and silver. There was therefore no arguable error in my decision. In addition, any alleged error was not of general or public importance.

[13]      After the respondents filed their submissions, Mr Smith filed an affidavit dated 26 November 2021. Mr Smith deposes that he is a trustee of a trust settled by his father more than 30 years ago. He says the trust owns precious metals and has made those assets available to him for the purposes of providing security for costs.

Principles governing leave to appeal interlocutory decisions

[14]     In Ngai Te Hapu Inc v Bay of Plenty Regional Council, the Court of Appeal, though refraining from laying down definitive principles, said leave to appeal should be granted under s 56(3) only where:1

(a)There is an arguable error of law or fact; and

(b)The significance or implications of that arguable error, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay the appeal process will involve.

1      Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; see also Tomar v Tomar [2021] NZCA 419 at [7].

[15]     In Tomar v Tomar, the Court of Appeal referred with approval to the considerations that Fitzgerald J, in Finewood Upholstery Ltd v Vaughan, had recognised as relevant on an application for leave to appeal under s 56(3). The Court said those considerations were:2

(a)A high threshold exists.

(b)The applicant must identify an arguable error of law or fact.

(c)The alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value.

(d)The circumstances must warrant incurring further delay.

(e)The ultimate question is whether the interests of justice are served by granting leave.

[16]     Other authorities have, correctly in my respectful view, said that the proposed appeal must be of sufficient significance to warrant the delay and cost of the appeal.3

[17]In summary, Mr Smith must satisfy me that:

(a)There is an arguable error of law or fact; and

(b)The alleged error is of sufficient importance (either generally or to Mr Smith) to warrant the cost and delay of the appeal.

Is there an arguable error of fact or law?

[18]     Mr Smith’s essential submission is that I failed to distinguish between the trust and himself. I do not accept that I made any arguable error in that respect. I was well

2      Tomar v Tomar [2021] NZCA 419 at [6], referring to Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9] and [14].

3      Li v Chief Executive, Ministry of Business, Innovation and Employment (No 2) [2018] NZHC 1171 at [21]–[22]; Yu v Bradley [2018] NZHC 2312 at [11].

aware that, if Mr Smith held any property on trust, he could deal with that property only subject to the trust. The question for me was whether, keeping in mind the possibility of property being held subject to a trust, Mr Smith was “unable to pay the fee”. The difficulty for Mr Smith was that he had told the Court, by memorandum, that he had access to and controlled substantial amounts of precious metals, and he could provide as much silver as the Court wanted in terms of security. This made it clear that, notwithstanding any trust obligations, Mr Smith personally had access to and control over substantial assets. For that reason, I was not satisfied that Mr Smith was unable to pay the filing fee.

[19]     Mr Smith also appears unwilling to convert the precious metals into money. He has previously attempted to provide silver as security for costs (in an amount higher than the fee for which he sought a waiver). His unwillingness to convert the silver into money was irrelevant to his fee waiver application and is irrelevant to this application for leave to appeal. The question was whether he was able, not whether he was willing, to pay the fee.

[20]     As noted, Mr Smith also submits that my judgment failed to address the aspect of his original appeal being out of time. It is correct I did not address that matter in my judgment. That is because my judgment was concerned solely with whether Mr Smith was unable to pay the fee.

[21]I conclude that Mr Smith has not shown an arguable error in my judgment.

Is the alleged error of sufficient importance (either generally or to Mr Smith) to

warrant the cost and delay of the appeal?

[22]     Mr Smith does not directly address this matter in his submissions. I infer, however, that his position is that the alleged error is important to him because, if he does not obtain a fee waiver, his underlying appeal (from a District Court decision) will not be able to proceed.

[23]     I do not accept this. Mr Smith has told the Court that he has the means to pay security for costs (albeit he is unwilling to convert silver into money). I am not satisfied that, if he does not obtain a fee waiver, he would be unable to pay the fee.

[24]     For completeness, the alleged error raised by Mr Smith is not of general importance.

Result

[25]     Mr Smith has not satisfied me that there is an arguable error in my decision or that any such error is of sufficient importance to warrant the cost and delay of an appeal.

[26]Mr Smith’s application for leave to appeal is declined.

Campbell J