Woolf v Kaye - [2018] NZHC 1250

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-001043

[2018] NZHC 1250

BETWEEN
V WOOLF

First Plaintiff

V WOOLF
as executor of the Estate of N B WOOLF Second Plaintiff

AND

A B KAYE

(previously known as A WOOLF) First Defendant

M W S CLARK

as executor of the Estate of V I WOOLF Second Defendant

Hearing: On the papers

Appearances:

G A Keene for Plaintiffs

Judgment:

31 May 2018

JUDGMENT OF LANG J

[on review of Registrar’s decision not to waive fees]

This judgment was delivered by me on 31 May 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

WOOLF v KAYE [2018] NZHC 1250 [31 May 2018]

[1] Ms Woolf is currently engaged in litigation with her brother. The litigation relates to the ownership of a house property in Auckland. The property has always been registered in her brother’s name, but Ms Woolf claims she has an equitable interest in it.

[2] The trial of Ms Woolf’s claim is currently in progress. It has been allocated two weeks but is likely to extend beyond that time frame.

[3]The hearing fees payable to the Court in relation to the hearing amount to

$30,400.00. This sum is calculated on the basis of a two-week hearing. In addition, Ms Woolf is required to pay a scheduling fee of $1,600.00. If the hearing extends beyond the end of the second week additional hearing fees will be payable.

[4] Ms Woolf applied to the Registrar for the hearing fees and scheduling fee to be waived on the basis that payment of the fees would cause her undue hardship.1 The Registrar declined the application. Ms Woolf now asks the Court to review the Registrar’s decision under r 2.11(1)(a) of the High Court Rules 2016.

[5] Ms Woolf paid the sum of $19,200 after the Registrar declined her application for fee waiver. She was due to pay the balance on 24 May 2018, but I suspended that obligation pending determination of the application for review.

Undue hardship

[6] The payment of hearing fees will often cause hardship to an applicant because, as the present case demonstrates, a civil trial of even moderate duration will require the payment of significant hearing fees. This requirement reflects Parliament’s intention that those who seek to have civil disputes determined by the High Court should contribute to the institutional costs of the trial. For that reason hearing fees may only be waived where they cause hardship to the applicant that is undue.

[7]As Keane J observed in Appleton v Tauranga Law:2

1 High Court Fees Regulations 2013, regs 18 and 19.
2 Appleton v Tauranga Law [2012] NZHC 242, (2012) 21 PRNZ 275.

[17] What is finally important is the degree of hardship claimed. Regulation 6 assumes that a plaintiff may suffer some hardship if obliged to pay hearing fees but that is not enough. The hardship suffered must be…

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 Woolf v Kaye

Details

AGLC: Woolf v Kaye [2018] NZHC 1250
Case: [2018] NZHC 1250
Decision Date: 31 May 2018

CaseChat Overview and Summary

Woolf v Kaye is a case in which the High Court of New Zealand was asked to review a Registrar's decision to deny a plaintiff's application to waive hearing fees and a scheduling fee. The plaintiff, Ms Woolf, is engaged in litigation with her brother over the ownership of a house in Auckland. The case involves complex issues of equitable interest in property and has been allocated two weeks for trial, with potential for extension. Ms Woolf applied for a waiver of the hearing fees, which amounted to $30,400, and a scheduling fee of $1,600, on the grounds that paying these fees would cause her undue hardship.

The legal issues before the court were whether the Registrar's decision to deny the waiver was correct and whether Ms Woolf would suffer undue hardship if required to pay the fees. The court had to consider the meaning of "undue hardship" and whether it was applicable to Ms Woolf's financial situation. Ms Woolf's financial position was detailed, showing assets of approximately $171,000, primarily from her late father's estate, and debts totaling $205,898.74, including $171,000 in legal fees related to the current litigation. Her weekly income from private tutoring averaged between $600 and $800, with weekly expenses of $525. The court needed to determine if the payment of the fees would place Ms Woolf in a position of significant financial distress.

The court found that while Ms Woolf had been able to pay the first instalment of the hearing fees, she would suffer undue hardship if required to pay the second instalment. This decision was based on Ms Woolf's current liabilities, which equal or exceed her assets, and the potential for her financial situation to deteriorate further if her claim against her brother was unsuccessful. The court held that the payment of the fees at that point would place her in significant negative equity. The court concluded that it had the power to reduce the fees to a level that would cause hardship but not undue hardship, which, in this case, was the amount Ms Woolf had already paid. The court set aside the Registrar's decision and ordered that no further hearing fees be paid by Ms Woolf.

This decision highlights the court's consideration of the financial circumstances of litigants when determining the applicability of fee waivers and the statutory requirement of "undue hardship." The court's ruling ensures that Ms Woolf will not face extreme financial distress due to the payment of the hearing fees, while also acknowledging the need for litigants to contribute to the costs of litigation.

Orders