Smith v Plowman - [2021] NZHC 2618

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-1102

[2021] NZHC 2618

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:

1 October 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 1 October 2021 at 4:00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

SMITH v PLOWMAN [2021] NZHC 2618 [1 October 2021]

[1] The appellant, Mr Smith, has filed a memorandum dated 21 September 2021 requesting a fee waiver for his application for leave to appeal. He had previously requested a fee waiver from the Registrar. That request was declined by a Deputy Registrar. Mr Smith is effectively seeking a review of that decision.

Mr Smith’s request to the Registrar for a fee waiver

[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 is 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.

The Deputy Registrar’s decision

[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 (to which I refer further below), 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.

Mr Smith’s submissions

[4] Mr Smith said the Registrar’s 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”.

Decision

[5] The review function of a Judge in relation to a filing fee decision is exercised de novo. The question on this review is whether I am satisfied that Mr Smith is, on the basis of one of the criteria specified in…

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 2618
Case: [2021] NZHC 2618
Decision Date: 1 October 2021

CaseChat Overview and Summary

The case of Smith v Plowman involved a dispute regarding a fee waiver request made by the appellant, Dennis Arthur Smith, for his application for leave to appeal. The respondents were Ian James Plowman, Nikau Grove Nursery Limited, and Helen Irene Mitchell. The matter was heard in the High Court of New Zealand, Auckland Registry, and was governed by the Property Law Act 2007.

The central legal issue in this case was whether the appellant, Mr Smith, qualified for a fee waiver under the High Court Fees Regulations 2013. Mr Smith had previously applied for a fee waiver, which was declined by a Deputy Registrar, and he sought a review of that decision. The court was required to determine if Mr Smith was "unable to pay the fee" based on the criteria specified in the relevant regulations.

The court reviewed Mr Smith's application de novo, considering his submissions and the evidence he provided. Mr Smith had claimed he was dependent on jobseeker support and had minimal cash resources. However, the court also noted that Mr Smith had previously indicated he had access to substantial amounts of gold and silver, and could provide security in the form of silver. The Deputy Registrar had declined Mr Smith's fee waiver request based on these findings, stating that Mr Smith had other significant means. The court agreed with the Deputy Registrar's decision, concluding that Mr Smith was not unable to pay the fee and therefore did not qualify for a waiver.

As a result of this reasoning, the court declined Mr Smith's application to review the Deputy Registrar's decision. The judgment reaffirmed the decision that Mr Smith's application for a fee waiver should be declined, and the court did not grant the requested review.

Orders