BOSWELL V MILLAR CA293/2013 [2013] NZCA 219

BOSWELL V MILLAR CA [2013] NZCA 219 [11 June 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA293/2013[2013] NZCA 219BETWEEN KATHRYN FRANCES BOSWELLAppellantAND OWEN ROSS MILLARRespondentCounsel: Appellant in personD S Quinn for RespondentJudgment:(On the papers)11 June 2013 at 10.00 amJUDGMENT OF STEVENS J(Review of Registrar's decision declining to waive filing fee)The application for review of the decision of the Registrar declining to waive the filing fee of $1,087.50 is dismissed.____________________________________________________________________REASONSIntroduction[1] The appellant, Kathryn Frances Boswell, has applied to review theRegistrar's decision declining to waive the filing fee of $1,087.50. The appeal to thisCourt is against a decision of Katz J in the High Court dismissing her claims forbreach of contract and a claim for refund of rent pursuant to consent orders.1 Herclaims arise in the context of an alleged right to purchase part of the respondent'sland, which she had rented, and a subsequent settlement agreement effecting thatpurchase.1 Boswell v Millar [2013] NZHC 703.[2] The decision of the Registrar was made under reg 5 of the Court of Appeal Fees Regulations 2001. I have personally considered the application to review the Registrar's decision under s 100B of the Judicature Act 1908. I may confirm, modifyor revoke the decision of the Registrar as I see fit.2The Registrar's decision[3] Upon an application under reg 5 the Registrar may waive a fee connected with a proceeding if satisfied that the appellant is unable to pay the filing fee or the proceeding concerns a matter of genuine public interest and is unlikely to progress unless the fee is waived.3 Ms Boswell applied for a waiver of the fee on both grounds.[4] In a decision of the Registrar dated 15 May 2013 the Registrar advised the appellant as follows: your situation does not meet either criteria to have the fee waived. Although financially stretched, you have valuable assets to which you would be able to secure the ability to pay the court filing fee. I am also of the view that, on the material that has been supplied, there is not a question of law that is of significant interest to the public, or to a substantial section of the public, rather the judgment relates to a particular set of facts relating only to the appellant.Grounds of Review[5] The appellant now accepts that her appeal is not of significant public interest. This is appropriate. The appeal concerns a private property dispute and appears inlarge part to dispute the trial Judge's factual findings.4 The appellant does, however, challenge the Registrar's conclusion regarding her ability to pay the filing fee. She contends that she would suffer undue financial hardship if she is required to pay the fee. Further information concerning her financial position has been provided in support of the review.2 Judicature Act 1908, ss 61A(3) and 100B(5).3 Court of Appeal Fees Regulations 2001, reg 5(2)(a) and (b) [the Regulations].4 A proceeding of "genuine public interest" is one which raises a question of law or issue which is of significant interest to the public or a section of the public: Regulations, reg 5(4)(a) and (b).The law[6] The criterion in reg 5(3)(b)(iii) requires not only that the payment of the feewould cause financial hardship, but that the financial hardship would be "undue".The ordinary meaning of that word is apposite: "going beyond what is appropriate,warranted, or natural; disproportionate, excessive".5 Court fees are the price payableby litigants for access to the Courts. The purpose of the administrative mechanismfor waiver of fees by the Registrar and review by a Judge is to ensure that theinhibiting effect of the requirement to pay fees on a litigant's access to justice doesnot become too burdensome.6 What is important is the degree of hardship involved.Regulation 5 assumes that an appellant may suffer some element of hardship ifobliged to pay fees, but that is not enough. Before relief may be granted thehardship must be "undue". Another way of putting it is that the hardship should gobeyond the ordinary or be greater than what is just and right.7 This is for theappellant to show.8Discussion[7] The appellant has provided bank accounts in support of this application.They show that as at 24 April 2013 the mortgage account was overdrawn in the sumof $250,971.53, having been increased by $252,075.00 on 5 March 2013, apparentlyto cover litigation costs. That figure needs to be compared with the value of themortgaged land (apparently the land purchased under the settlement) which has aCV of $491,000. There is thus a considerable equity in the property. The bankaccounts show total deposits of $3222.34 as at 24 April 2013. The appellant says netfunds have now dropped to $798.37.[8] The appellant's overall asset position is somewhat unclear. She indicated in her original application for waiver that the adjacent property on which she lives is mortgaged to the value of $337,000 – more than its estimated value of $285,000. However, she says no capital or interest is due to be repaid until 2016. She also5 John Simpson and others (eds) Oxford English Dictionary (2010, online ed) < www.oed.com >.6 Re Wiseline Corporation Ltd (2002) 16 PRNZ 347 at [18]–[19].7 Compare Appleton v Turanga Law [2012] NZHC 242 at [17] dealing with a similarly worded reg 6 of the High Court Fees Regulations 2001.8 New Zealand Cards Ltd v Ramsay [2013] NZCA 72.indicates that she owes $70,774.37 for legal services, owns an older station wagon, a quad bike and an unspecified number of farm animals. She is committed to a small outstanding hire purchase obligation.[9] Finally, the appellant says she faces fixed costs of approximately $1000 per week. In terms of income there are deposits emanating from the Ministry of Education (presumably from relief teaching). The source of other deposits is not identified.[10] In her review application the appellant responds to the Registrar's contentionthat she would be able to use her property as security for funds to pay her court fees. She states that she has been attempting to sell her farm property without success and that she has only part-time employment as a relief teacher. She says that the bank will not increase her mortgage or advance credit unless she is employed full-time. No relevant correspondence is provided.[11] I consider that the appellant will suffer a degree of financial hardship by having to pay the filing fee for this appeal. However, I am not satisfied that the appellant has demonstrated that she would suffer undue hardship. First, the burden of her legal debts is an ordinary consequence of her decision to pursue legal action against the respondent. Second, even if the bank is unwilling to increase her mortgage, she retains significant equity in the property. The appellant has properly acknowledged the possibility of obtaining a private loan to cover the filing fee.[12] Finally, the information provided in support of the review leaves the appellant's total asset position unclear. In her original application the appellant proposed to sell lambs and five horses to cover the filing fee in this appeal at an estimated sale price of $2000 per horse and $5000 for the lambs. She says now that she expects to receive $3000 for the sale of "remaining lambs". Whatever the situation, there are assets that can be sold or used as security to raise funds to pay the filing fee.Result[13] For the reasons set out above, I am satisfied that the Registrar's decision todecline to waive payment of the setting down fee of $1,087.50 was correct. Itherefore dismiss the application under s 100B of the Judicature Act. The appellantmust pay the filing fee to the Registrar in relation to the present appeal if she wishesthe appeal to proceed.Solicitors:Chatwin Legal Limited, Hamilton for Respondent