HENDRIK GEZINUS DIJKSTRA AND BARBARA JANE DIJKSTRA v MARTHA TIERNEY [2023] NZCA 379

HENDRIK GEZINUS DIJKSTRA AND BARBARA JANE DIJKSTRA v MARTHA TIERNEY [2023] NZCA379 [21 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA380/2021[2023] NZCA 379BETWEEN HENDRIK GEZINUS DIJKSTRA ANDBARBARA JANE DIJKSTRAAppellantsAND MARTHA TIERNEYFirst RespondentAND WELLINGTON FAMILY COURTSecond RespondentHearing: 6 July 2023Court: Miller, Collins and Mallon JJCounsel: N Levy KC and A Jeremich for AppellantsQAM Davies and E-J M Tucker for First RespondentJudgment: 21 August 2023 at 2.00 pmJUDGMENT OF THE COURTA The appeal against the award of costs in the High Court is allowed.B The application for a certificate under s 45 of the Legal Services Act 2011 inrelation to costs in the High Court and in this Court is declined.C The appeal is otherwise dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] The appellants, Hendrik (Henry) and Barbara Dijkstra, seek judicial review ofFamily Court decisions which found invalid an enduring power of attorney allowingthem to use the donor's money for their own purposes, decided that they ought to repayfunds withdrawn otherwise than for the donor's benefit, and removed them as propertyand welfare attorneys, to be replaced by the Public Trust.1 They had previously beenrefused an adjournment and did not appear at the hearing.2[2] Henry and Barbara did not appeal the decisions or a subsequent decision toaward scale costs to Martha Tierney.3 Rather, they applied for judicial review some14 months later, naming the Wellington Family Court as first respondent and MarthaTierney as the second respondent.4 In the judgment under appeal Clark J declined theapplication, finding there had been no breach of natural justice and adding that hadshe found otherwise she would have exercised her discretion to decline relief.5 Shealso ordered that Henry and Barbara pay costs.6Narrative[3] The judgment below contains a long narrative which the appellants do notdispute. For our purposes, a much shorter account will suffice.[4] The donor was Gezinus Dijkstra. He and his wife Alida, who died on23 October 2015, had four children: Henry, Martha, Elizabeth Halley and[redacted] Dijkstra. Martha cares for [redacted], who is disabled. Elizabeth has notplayed an active part in the litigation, and Martha has effectively represented[redacted] interests.[5] On 3 July 2012 Gezinus appointed Henry as attorney for property under theProtection of Personal and Property Rights Act 1988 (PPPRA) (the 2012 POA) andBarbara as attorney for personal care and welfare. The validity of these instruments1 Tierney v Dijkstra [2019] NZFC 1434 [Section 102 decision]; Tierney v Dijkstra [2019] NZFC1170 [Section 103 results decision]; and Tierney v Dijkstra [2019] NZFC 1172 [Section 103reasons decision].2 Tierney v Dijkstra FC Wellington FAM-2018-035-40, 18 February 2019 [Minute No 3 ofJudge Black].3 Tierney v Dijkstra [2019] NZFC 6784 [FC costs decision].4 The judicial review application came nine months after the costs decision.5 Dijkstra v Wellington Family Court [2021] NZHC 1260 [Judgment under appeal] at [123]–[124].6 At [134].is not in dispute. By 2015 Gezinus was sharing his time between Henry and Barbaraat his Carterton home and Martha and [redacted] at Martha's home in Tawa, near towhere Alida was in a rest home. In January 2015 his longstanding GP, Dr CraigCherry, wrote a letter, at Henry's request, advising that Gezinus no longer had themental capacity to make decisions about health and welfare. (We record in passingthat the doctor advised Kerry O'Brien, counsel appointed to represent Gezinus in theFamily Court proceedings, in 2018 that he had not actually examined Gezinus at thattime and now accepted that his letter was not sufficient to activate a power of attorney.)From August 2016 Gezinus lived in care facilities in Masterton and Lower Hutt,although Barbara returned him to his home for a brief period in 2018.[6] The 2012 POA was in what Judge Black described as "an uncontroversialform";7 it required that Henry consult family before exercising powers and keep theminformed, and it did not authorise any element of self-dealing. In September 2016Martha made inquiries to Henry about financial transactions he had made in his roleas attorney, and for information about Gezinus' property. In 2017 Henry instructed asolicitor, Tim Slack, who was employed by WCM Legal, to prepare a new enduringpower of attorney (the 2017 POA) which expressly permitted self-dealing.Specifically, it allowed Henry and Barbara to live at Gezinus' home and pay theirliving expenses out of Gezinus' bank account. Gezinus agreed to this, the Judgefinding that Henry and Barbara had told him they would move overseas if he did notsupport them.8 He signed the 2017 POA on 18 August 2017. Before he signed it hewas assessed by Dr David Heard, who found him competent to give legal instructions.[7] On 13 January 2018 a psychogeriatrician found Gezinus incapable of makingdecisions about property and welfare. Henry now maintains that Gezinus wascompetent until this date and thereafter he acted as attorney under the 2017 POA.[8] In January 2018 Martha's lawyers wrote to Henry and Barbara requestinginformation in accordance with the 2012 POA, at which point Martha was made awareof the 2017 POA. Litigation began in February 2018, with Martha applying for review7 Section 102 decision, above n 1, at [4].8 At [5].of Henry's decision to refuse her information and Henry applying for a declarationthat the 2017 POA was valid.[9] Throughout the proceedings Henry was represented by Keith McClure, aprincipal of WCM Legal, as to the validity of the 2017 POA. It was recognised thatthe firm had a conflict of interest and could not represent Henry and Barbara on theother applications.9 Henry was represented by counsel, John Langford, on the otherapplications until August 2018. Henry and Barbara notified the Court on 21 Augustthat they represented themselves. The Court appointed Mr O'Brien as counsel forGezinus.[10] On 2 August 2018 Judge Binns made interim orders restraining Henry fromdealing with Gezinus' assets other than to pay specified expenses such as rest homefees.10 The Judge also joined Barbara as a party, noting that Henry had made paymentsinto her accounts.11 Henry had refused Mr O'Brien's request that he disclose financialinformation and failed to comply with a judicial direction that he do so.12 He wasordered to comply.13 The issues were identified; relevantly, they included whether anytransactions made by Henry in respect of Gezinus' assets were properly made, andwhether Henry or Barbara should be required to repay any sums.14 Timetabling orderswere made for the substantive hearing; these recorded that Henry would be requiredfor cross-examination.15[11] Henry moved to have the interim orders set aside. A hearing was held on30 November 2018.16 He and Barbara appeared in person. Mr McClure did notappear. Judge Black delivered an oral judgment, dismissing the application for reviewon the ground that an appeal was the proper course.17 The Judge granted an application9 Mr McClure has explained that he felt he had to file the application for Henry because the firm'sclient, Gezinus, was no longer competent, and he thereafter tried to assist the Court as best hecould.10 Tierney v Dijkstra [2018] NZFC 5680 [Interim decision of Judge Binns] at [59].11 At [33] and [40]–[41].12 Tierney v Dijkstra FC Masterton FAM-2018-035-40, 5 April 2018 (Minute No 1 of Judge Grace)at [2].13 Tierney v Dijkstra FC Masterton FAM-2018-035-40, 19 June 2018 (Minute of Judge Walsh) at[11].14 Interim decision of Judge Binns, above n 10, at [68].15 At [72]–[77].16 Tierney v Dijkstra [2018] NZFC 9518.17 At [6].by counsel for Gezinus for review of Barbara's decision to return Gezinus to his home,finding that he needed intensive psychogeriatric care.18[12] At the same hearing the Judge dictated a minute in the presence of the partiesdealing with the future of the litigation.19 He made timetabling orders for evidence,under which Henry and Barbara were required to file any affidavits by25 January 2019, and set a one-day fixture for 18 February 2019, to be preceded by ateleconference on 30 January 2019.20 He would case-manage the proceeding himselfand he directed any party who sought intervention before the hearing date should filea memorandum which would be referred to him. The minute was typed back andsigned but through registry error it was not distributed.21 Nor was any fixture noticeissued by the Registrar.[13] Counsel for Martha, Ms Tucker, filed and served a memorandum on12 December 2018 seeking review of a decision of Barbara's to refuse to allow Marthato take Gezinus out of the rest home for a drive when she visited him. Counselrecorded that the next event was a teleconference on 31 January 2019.[14] On 23 January counsel for Gezinus circulated a checklist for the teleconferenceto be held at 2.45 pm on 31 January, and on 24 January 2019 Ms Tucker filed andserved a memorandum for the teleconference. Martha also applied (on 25 January)for removal of Henry and Barbara as attorneys. That application had beenforeshadowed at the hearing before Judge Binns.22[15] Henry and Barbara responded by memorandum on 25 January, noting that theyhad not "received any correspondence from the court" about the teleconference. Theyhad insufficient time to prepare. Also, they wanted to brief counsel, having nowrealised that it was not enough to simply "communicate the truth". They needed legalaid. They would advise the Court once they had a lawyer.18 At [8]–[9].19 Tierney v Dijkstra FC Wellington FAM-2018-035-40, 30 November 2018 (Minute No 2 ofJudge Black).20 At [3].21 Judgment under appeal, above n 5, at [50].22 Interim decision of Judge Binns, above n 10, at [69]–[70].[16] On 28 January Henry filed a further memorandum, stating among other thingsthat he and Barbara had been out of the country on dates when money was withdrawnfrom Gezinus' accounts using ATMs in New Zealand and he needed time to obtainImmigration New Zealand records to verify that fact.[17] Judge O'Dwyer conducted the teleconference. She took Henry'smemorandum of 25 January as an application for adjournment, which she declined.23She observed that Henry and Barbara had known of the fixture since30 November 2018.24[18] On 7 February Henry emailed the registry complaining that the Court had notgiven him notice of the callover or the fixture. He asked that the hearing be adjournedso he and Barbara might obtain counsel and prepare. In the meantime, he and Barbarahad applied for legal aid, through the firm Main Street Legal, at the end of January,though the Court was not told of that at the time.[19] Counsel filed submissions before the hearing, Ms Tucker and Mr O'Brien on11 February and Mr McClure (as counsel for Henry on the 2017 POA validity issue)on 12 February. Mr McClure noted that Henry had said he and Barbara could notproceed on 18 February but submitted that the validity issue could be decidedseparately on that date.[20] On 13 February Henry filed a memorandum repeating his complaints aboutlack of notice from the Court, unfair treatment and being given insufficient time toprepare. He could show that Gezinus had capacity and authorised payments madebefore the 2017 POA, and further that he and Barbara had been out of the countrywhen withdrawals were made. He complained about counsel for Gezinus, accusinghim of bias.[21] On 14 February the Registrar replied to Henry's email of 7 February,apologising for lack of notice of the callover, attaching the minute of Judge O'Dwyerand advising that "[t]he matter is back before the court on Monday 18th February".23 Tierney v Dijkstra FC Wellington FAM-2018-035-40, 31 January 2019 (Minute ofJudge O'Dwyer) at [2] and [4].24 At [3].Henry responded immediately, claiming this left only one working day to prepare forthe hearing and advising that as a result he and Barbara were unable to attend. Heappears to have assumed an adjournment would follow, because he added that hewould keep the Court informed about obtaining legal aid and when he obtainedevidence from Immigration New Zealand. He would also advise when he and Barbarawould be out of New Zealand for work reasons. He subsequently complained to theMinistry of Justice about the way he and Barbara had been treated, and in due coursereceived an apology.[22] On 13 February legal aid was declined on the ground that Henry and Barbaradid not meet financial eligibility criteria. The Court was not told of this at the time,nor did Main Street Legal take any steps to appear or secure an adjournment.[23] At the hearing on 18 February, Judge Black began by considering whether toadjourn. He stated that:25[7] I am satisfied that Mr Dijkstra knew of today's hearing. He was inCourt when it was allocated. He knew that it was to be in theWellington Court. It would have been a relatively simple matter for him toenquire as to what courtroom. He was directed on 30 November to fileupdating evidence and any response evidence by 25 January. He has notcomplied with that direction and I am not prepared to grant what I have takenas his application for an adjournment. At the very least if that application wasprosecuted I would have expected him to appear today and address it but hehas not.[24] The hearings proceeded. Mr Slack and Dr Heard were called by Mr McClure.The Judge accepted, with reservations, that Gezinus had capacity to sign the2017 POA,26 but because s 94A(6) of the PPPRA (matters which must be explained toa donor) had not been complied with he found that the document was not an enduringpower of attorney.27 He found that payments had been made to Henry and Barbarathat were not authorised under the 2012 POA and he accepted a schedule in whichMs Tucker had calculated the sum repayable, which came to $136,766.31.28He ordered that Henry repay that sum.2925 Minute No 3 of Judge Black, above n 2.26 Section 102 decision, above n 1, at [15]. Under s 93B of the Protection of Personal and PropertyRights Act 1988 [PPPRA] a presumption of competence must be displaced.27 Section 102 decision, above n 1, at [25]–[26].28 Section 103 results decision, above n 1, at [3]–[5].29 At [5].[25] The Judge accepted that Henry and Barbara could not remain as attorneys.30They were removed. The Public Trust was appointed as property manager,31 andMartha's request for appointment as welfare guardian was adjourned for furtherconsideration.32[26] It appears that the Court distributed the judgments on 6 March 2019.On 11 April 2019 Graeme Reeves, solicitor, advised Ms Tucker that he acted forHenry. No steps were taken to appeal or seek a rehearing.[27] On 26 August 2019 the Judge ordered that Henry and Barbara pay Martha'scosts as per scale.33 This decision is also the subject of the judicial review application,which was brought on 8 May 2020.[28] Gezinus died on 20 February 2020.The judicial review application[29] The application for judicial review was filed, through then counsel on 8 May2020. It sought review for breach of natural justice and s 27(1) of the New ZealandBill of Rights Act 1990, saying that the Family Court failed to give Henry and Barbaraan opportunity to be heard, either in support of adjournment or at the hearing. Theclaim was squarely framed as a denial of the right to a hearing.[30] Clark J carefully reviewed the facts. She recorded that counsel accepted thatHenry and Barbara did have notice of the hearing on 18 February (and she found as afact that they knew of the teleconference on 31 January).34 However, counsel arguedthat the Court had failed to provide a copy of the minute of 30 November 2018, noticeof the teleconference, formal notice of the fixture, a copy of Judge O'Dwyer's minuteof 31 January 2019, copies of the 18 February minute and judgments of Judge Black30 At [6].31 At [11].32 At [7].33 FC costs decision, above n 3, at [14].34 Judgment under appeal, above n 5, at [99] and [101].or his costs decision. Clark J acknowledged these failings but observed that thequestion was whether fair hearing rights had been breached.35[31] As to that, the Judge found the absence of formal written notice from theRegistry immaterial.36 Henry and Barbara had known since 30 November of thehearing and knew what they were required to do by way of preparation.37 They knewthey were required for cross-examination. The question was whether they were denieda fair hearing because they lost the opportunity to prepare what they described ascrucial evidence and engage counsel.38[32] Addressing the first of these complaints, Clark J noted that Henry and Barbarahad still not, after all this time, produced evidence that they were overseas whencertain withdrawals were made from ATMs.39 The issue was in any event peripheral,because those withdrawals were not in issue; the money Martha wanted repaidcomprised payments for Henry's living expenses and into Henry's bank account.40[33] Turning to the second complaint, the Judge observed that Henry wasrepresented by counsel on the 2017 POA validity issue.41 He had failed to showJudge Black that he had tried to obtain representation. He claimed to havecorrespondence from lawyers who were too busy to represent him, but he had notproduced it at that time.42 This was in keeping with "his apparent disinclination toco-operate with other processes to which he object[ed]", such as disclosure ofinformation required by the Court.43 In effect he and Barbara simply decided not toparticipate. Clark J concluded that:[122] No matter their justifiable sense of grievance about administrativefailings in court processes litigants may not seek to vacate a long-scheduledhearing date, about which they had ample notice (and do not now argueotherwise) by simply notifying the Court that they have decided not to attend.35 At [93].36 At [115].37 At [101].38 At [101].39 At [105]–[106].40 At [107]–[108].41 At [110].42 At [113].43 At [115] and [126].[123] The applicants were afforded an opportunity to protect their hearingrights either by seeking an adjournment on 18 February or advancing theirdefence. They cannot now complain they were denied natural justice when,for reasons that are far from compelling, they failed to take the opportunityavailable to them to appear and take either step. In the circumstances in whichthe substantive hearing proceeded on 18 February 2019, the applicants werenot unfairly denied their right to a hearing and they have not established abreach of natural justice.[34] Clark J went on to add that had there been a breach of natural justice she wouldhave denied relief:(a) Henry's conduct of his case in the Family Court was marked at timesby flagrant non-compliance with directions and a high-handedapproach to timeframes.44(b) He and Barbara had shown they were able to represent themselveswhen it suited them; they did so when seeking to set aside the interimorders made by Judge Binns, filing evidence and making oralsubmissions.45(c) Henry chose not to appear in support of his adjournment application,and he still had not explained the nature of his defence.46(d) Henry and Barbara might have appealed, or sought a rehearing, andtheir explanation for not doing so was unsatisfactory.47(e) The judicial review application was filed late, 14 months after receiptof the written decisions of the Family Court.48[35] Costs were awarded to Martha.49 It does not appear that the Judge was awarethat Henry and Barbara were legally aided.44 At [126].45 At [127].46 At [128].47 At [129]–[130].48 At [131].49 At [133]–[134].The appeal[36] Ms Levy KC, who did not appear below, contended that Henry and Barbarawere denied a hearing. Natural justice required an adjournment so they could securerepresentation and file evidence. She focused on the Registrar's email of14 February 2019, arguing that it conveyed that the hearing would proceed come whatmay and left Henry and Barbara with the impression that they could not appear on18 February and seek an adjournment in person. She submitted that they stayed awaybecause experience had taught them they would have no voice until they had a lawyer.A second pre-hearing conference ought to have been held to address their request fortime to prepare. The issues were complex and it was essential that they have legaladvice. They realised that on 30 November 2018. Having regard to the Christmasvacation and the need to seek legal aid, the timetable left them insufficient time toarrange counsel. There were no grounds for awarding costs against a legally aidedperson.Discussion[37] In substance Clark J found against Henry and Barbara on the facts relevant tothe pleaded breaches of natural justice, which as noted allege denial of the right to ahearing. We can state shortly that we are not persuaded she was wrong to do so.[38] Henry and Barbara knew on 30 November of the fixture and what they wererequired to do in preparation for it. Judge Binns had already made similar directions.50They knew in advance of the teleconference on 31 January. The correspondencestrongly invites the inference that they seized on the Court's failure to notify them ofthese events through the Registry as a pretext for not attending the hearing on18 February. We do not accept that the Registrar's email of 14 February conveyed theimpression that no purpose would be served by appearing on 18 February to seek anadjournment in person; that email merely confirmed, neutrally, that the matter wasback before the Court on that day. We do not accept that Henry saw it that way eitherat the time; the substance of his response on the same day, 14 February, was that he50 Interim decision of Judge Binns, above n 10, at [65]–[77].still required an adjournment and was entitled to one. He stated that he would keepthe Court informed about progress in obtaining a "legal aid solicitor".[39] We accept that legal representation is relevant to the pleaded question ofwhether Henry and Barbara were denied a hearing. Natural justice may require moreof a court which is dealing with a self-represented litigant.51[40] Henry and Barbara had had ample opportunity to seek legal advice followingthe filing of Martha's application in 2018. They had taken it in relation to the validityof the 2017 POA. We agree with Clark J that they were represented by Mr McClureon that issue, including at the hearing on 18 February.52 Evidence was called.[41] With respect to the other issues, Henry had been represented by Mr Langforduntil August 2018 but he and Barbara then decided to self-represent. As Clark J noted,they showed themselves able and willing to do so in their application to set aside theorders made by Judge Binns.53 The issues had been identified, and to some extentrehearsed, at that hearing, and they were not complex. Henry understood that it wouldbe necessary to justify payments as having been made for Gezinus' benefit or with hisauthority at a time when he was competent. These were questions of fact, and the factswere within his and Barbara's knowledge and control. While legal representationwould have been advantageous, we do not accept Ms Levy's contention that Henryand Barbara could not have a fair hearing without it.[42] The record also shows that after the 30 November hearing Henry and Barbarabriefed solicitors, Main Street Legal, through whom they belatedly sought legal aidfor the hearing. The failure of that firm to put themselves on the record and appear on18 February to seek an adjournment indicates that Henry and Barbara chose not toengage the firm when legal aid was declined. We observe that Main Street Legal werenotified of the couple's ineligibility on 13 February, the day before Henry'smemorandum telling the Court that he would keep the Court informed about progress51 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters,Wellington, 2021) at [25.4.2(2)].52 Judgment under appeal, above n 5, at [110].53 At [127].in obtaining legal aid. The reason given by the grants officer was that their disposablecapital exceeded the prescribed threshold by $37,000.[43] For these reasons we agree with Clark J that there was no breach of naturaljustice.[44] We also agree with Clark J that, had there been a breach of natural justice, reliefwould be unwarranted in the particular circumstances of this case, for three reasons.[45] First, any failure of court process was minor. As we have said, it is not indispute that Judge Black told Henry and Barbara on 30 November of the Februaryhearing and explained what they had to do to prepare. The timetable was notunreasonable, and the Judge had explained that they knew they might approach theCourt if they were unavailable for work reasons. They elected not to comply with thetimetable, or to appear, personally or by their then counsel, at the teleconference or on18 February to explain themselves and seek an adjournment.[46] Second, to justify relief in such circumstances they ought to show that theirdefence has substance. They have not done so to our satisfaction. We do not acceptthat there is a viable defence as to validity of the 2017 POA; the Family Court heardevidence from Mr Slack and argument from Mr McClure, and was satisfied that thenecessary processes had not been complied with. Nothing before us suggests thatconclusion was wrong.[47] That being so, and Gezinus having died, what remains of the dispute is thequantum of liability to repay money which was paid for the benefit of Henry andBarbara.[48] It appears that Henry and Barbara wish to argue generally that to meet theirliving expenses so they could support Gezinus was not to benefit themselves at hisexpense. We accept they feel strongly that everything they did was for his benefit.However, payments for their living expenses undoubtedly benefited them even ifGezinus also benefited, indirectly, through their continued presence. Further, theyknew the payments were vulnerable to challenge. Henry has explained that heobtained legal advice that payment of his and Barbara's living expenses benefited themand so was prohibited under the 2012 POA and s 107 of the PPPRA.54 That adviceled him to arrange the 2017 POA.[49] They also wish to argue that some of the payments, although made by Henry,did not engage the 2012 POA at all because the payments were authorised by Gezinuswhile he was competent, or by Alida (most of the payments came from joint accounts)before her death; alternatively, that some payments can be validated by the Court unders 103C of the PPPRA because they were made in the good faith belief that the2017 POA was valid. Ms Levy pointed out that Judge Black did not specify a date onwhich Gezinus became incapable; he accepted rather that capacity may come and go.55These arguments confront the difficulty that Henry himself maintained Gezinus wasincapable from January 2015 and thereafter relied on the 2012 POA to make payments.There is contemporaneous evidence from other sources tending to confirm thatassessment. (He now maintains that his stance reflected a misunderstanding on hispart about what is required to activate a POA.)[50] However, we think it plausible that had Henry and Barbara appeared at thehearing they might have been able to show that some payments were made forGezinus' benefit and not their own. The question of available defences has exercisedus, as it did Clark J, for that reason.[51] Ms Tucker's schedule was provided during the hearing at our request. Itimpresses as a good-faith attempt to quantify liability. It takes the sums transferred toHenry and Barbara's accounts, and utilities paid by Henry directly from Gezinus andAlida's accounts, totalling $160,981.48, and deducts amounts for which Henry hadprovided receipts, amounts which were not receipted but which Martha accepted hadbeen paid for Gezinus' benefit and, on the assumption that the 2017 POA was reliedon in good faith, an allowance (based generally on Henry's own claim) for living54 Section 107 took its present form in 2008. As originally enacted it permitted an attorney to benefitto the extent that the donor might be expected to provide for the attorney's needs. Since 2008 ithas provided that an attorney may not act to their own benefit (or that of any person other than thedonor), absent court permission or a specific power to do so in the enduring power of attorney.55 Section 102 decision, above n 1, at [15].expenses of Henry and Barbara between August and December 2017, when Marthagave notice of her allegation that the POA was invalid.[52] No real attempt has been made on judicial review to quantify any furtherdeductions, though Henry does depose that some of the money went on the costs ofdaily running a car to visit Gezinus at his retirement home in Masterton. It appearsproof would now be difficult because Henry did not retain records of some paymentssaid to have been made for Gezinus' benefit using money transferred from Gezinus'accounts to his and Barbara's.[53] In addition, the record quite plainly justifies the concerns of Judge Binns andJudge Black; Gezinus, vulnerable and of doubtful capacity, was prevailed upon toauthorise free use of his funds to support Henry and Barbara because they told himthat if he did not agree they would move overseas. When Martha challenged themabout their use of his funds they arranged for Gezinus to sign the 2017 POA, seekingto validate past and future payments from which they benefited directly.[54] We are nonetheless prepared to accept that had Henry and Barbara appearedand explained what they had done for Gezinus, a trial judge might have allowed themsome additional "in the round" deduction. They invested a great deal of time in hiscare and support, both in his home and when he was in care.[55] But we are dealing with judicial review, not leave to appeal a substantivedecision out of time. Our task is not that of weighing explanations for delay, anyinjustice to the other party, and the merits of the defence. Rather, we must decidewhether Henry and Barbara were denied a hearing. If they were, the merits of theirdefence would not matter unless the defence was so obviously inadequate as to justifydenying relief in the exercise of discretion. If they were not, then they must acceptthat the adverse outcome is the consequence of their decision not to participate.[56] That brings us to the third reason why relief would be declined if we acceptedthat the Registry's process failings in this case amounted to a minor breach of naturaljustice. The hearings having proceeded without Henry and Barbara, an appeal, orperhaps an application for rehearing founded on the existence of a substantive defence,was the appropriate remedy. They took advice about an appeal, but chose not to fileone.[57] We agree with Clark J that the reasons given for not appealing, if only topreserve time while they sought legal aid, are unsatisfactory.56 Henry deposes thatthey took legal advice (for which they paid) just before the appeal period expired butthought they could not afford an appeal and decided they would seek judicial reviewonce they had legal aid. This was to treat judicial review as a substitute for an appeal,capable of addressing the merits but available for prosecution at a time suitable tothem. The appeal period — 20 working days — reflects legislative policy aboutfinality in PPPRA litigation.57 That cannot be overlooked when considering a judicialreview application designed to achieve the same outcome as an appeal (a full rehearingin the Family Court).Costs appeal[58] It is common ground that Clark J must have overlooked the fact that Henry andBarbara had legal aid for the judicial review application. Martha had sought not costsbut a certificate under s 45(5) of the Legal Services Act 2011, on the ground thatHenry's conduct of the litigation put her to unnecessary cost. Mr Davies, for Martha,accepted that the costs award must be set aside. He asked us to issue the certificaterequested.[59] We are not persuaded that a certificate should have been issued in theHigh Court and we are not prepared to issue one here. Judicial review was the wrongprocess, but there were failures of court process and an appeal would hardly have beenless expensive for Martha.Disposition[60] The appeal against the award of costs in the High Court is allowed. There willbe no s 45 certificate as to costs in that Court or this one.56 Judgment under appeal, above n 5, at [130].57 PPPRA, s 83; and High Court Rules 2016, r 20.4.[61] The appeal is otherwise dismissed.[62] We understand that Gezinus' home has been sold and the estate, which includesas an asset the judgment sum fixed by the Family Court, remains to be distributed bythe executor, a corporate trustee firm. Henry's liability will be deducted from his shareof the estate, which is to be divided four ways under Gezinus' will. Although we canmake no order to this effect, we encourage the family to see the distribution as anopportunity to agree quantum. Henry and Barbara must accept that they cannot claimtheir own living expenses, but there may have been other payments which directlybenefited Gezinus. We were told that Martha has always accepted that credit shouldbe given for such payments.Solicitors:Treadwells, Wellington for AppellantGascoigne Wicks, Blenheim for First Respondent