Wootton v Wootton - [2021] NZCA 597

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA600/2020
[2021] NZCA 597

BETWEEN	MARGARET ANN WOOTTON Appellant
AND	PHILLIP GARRY WOOTTON Respondent

Counsel:	Appellant in Person E J Collins for Respondent
Judgment: (On the papers)	12 November 2021 at 10.30 am

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

AThe application to review the Deputy Registrar’s decision declining to grant a suspension of time under r 43(1B)(a) of the Court of Appeal (Civil) Rules 2005 is declined.

B The stay granted in [2020] NZCA 542 is set aside. ____________________________________________________________________

REASONS

Introduction

On 19 October 2020 Ms Wootton filed a notice of appeal against a judgment of the High Court dismissing her application for an order pursuant to s 143 of the Land Transfer Act 2017 sustaining caveats against the titles to three properties.[1] On 4 November 2020 Cooper J granted a stay prohibiting removal of the caveats pending disposition of the appeal or an earlier order of this Court setting aside the stay.[2]
[1]Wootton v Wootton [2020] NZHC 2684.
[2]Wootton v Wootton [2020] NZCA 542.
In a decision dated 18 June 2021 the Deputy Registrar declined an application by Ms Wootton under r 43(1B)(a) of the Court of Appeal (Civil) Rules 2005 (the Rules) for a sixth suspension of the application of r 43 to her appeal. Ms Wootton has applied for a review of that decision.

Relevant background

On filing her appeal Ms Wootton applied for a waiver of the filing fee of $1,100. That application was declined by the Deputy Registrar. The Deputy Registrar also declined an informal application by Ms Wootton for dispensation from the requirement to consult with the respondent on the preparation of the case on appeal.
Security for costs was set at $7,060. Ms Wootton applied under r 35(6) of the Rules for security to be reduced or dispensed with. That application was also declined by the Deputy Registrar.
Ms Wootton sought review of the Deputy Registrar’s decisions. In a judgment dated 16 March 2021 Clifford J granted Ms Wootton’s application to review the decisions concerning the filing fee waiver and the process for preparation of the case on appeal. However the Judge declined her review in respect of the decision declining to dispense with the requirement to pay security for costs.[3]
[3]Wootton v Wootton [2021] NZCA 63.
The Judge noted that the Deputy Registrar had determined her security for costs decision on the basis that the judgment under appeal showed there was little or no possibility of a successful appeal and that accordingly it was not an appeal that a reasonable and solvent litigant would seek to pursue. The Judge stated:
[26] I agree. As the Deputy Registrar noted, in the decision under appeal Associate Judge Johnston found that Ms Wootton could not establish even an arguable claim to a proprietary interest in any of the three properties so as to enable her to sustain her caveats.
[27] Ms Wootton…

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 Wootton v Wootton

Details

AGLC: Wootton v Wootton [2021] NZCA 597
Case: [2021] NZCA 597
Decision Date: 12 November 2021 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Margaret Ann Wootton against a decision of the Deputy Registrar not to grant a suspension of time under r 43(1B)(a) of the Court of Appeal (Civil) Rules 2005. The appeal related to a High Court judgment dismissing Ms Wootton's application for an order sustaining caveats against the titles to three properties. The Court of Appeal was required to determine whether the Deputy Registrar's decision not to grant a sixth suspension of the application of r 43 to Ms Wootton's appeal was correct. The Deputy Registrar had declined Ms Wootton's application for a suspension of time on the basis that there had been no progress in Ms Wootton's quest for legal aid since the appeal was filed seven months ago and that security for costs had been overdue for five months. The Deputy Registrar had also considered that there was little or no possibility of success in the appeal and an element of vexatiousness. The Court of Appeal found that Ms Wootton's legal aid application had been finally determined and that there had been ample opportunity to assemble the case on appeal. The Court of Appeal also found that Ms Wootton had not paid security for costs, which precluded her from complying with r 43(1). The Court of Appeal therefore declined to review the Deputy Registrar's decision and set aside the stay granted in November 2020. The appeal was deemed abandoned.

Orders