Jones v Accident Rehabilitation and Compensation Insurance 13Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 13 /2000 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 97 of the Act BETWEEN PHILLIP THOMAS JONES of Timaru Appellant (Appeal No. DCA 191/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The appellant seeks leave to appeal to the High Court against the decision of His Honour Judge M J Beattie, issued on 13 October 1998, under number 219/98. The issue on appeal was whether the respondent was correct in declining to remit the whole amount of an overpayment of weekly compensation. The full amount of the overpayment was assessed at $9,715.76 but after an application from the appellant, the respondent elected to remit half of the claim and required the appellant to pay the balance of $4,857.88. His Honour accepted that the appellant had not intentionally contributed to the error and that he had received the overpayment in good faith. The sole issue before the Court was whether the appellant had altered his position in reliance on the validity of the payment. His Honour held that there was no evidence that the appellant had altered his position in reliance of the payment and dismissed the appeal. 2 One issue before the Court was the fact that the appellant owned an investment flat which was subject to a mortgage but the income received by way of rent was less than the mortgage payments. It was submitted on behalf of the appellant that if he had known his weekly compensation should have been less than that received, he would have made a decision to sell the flat at that time. It was submitted that in the interim the market situation had so altered that a sale of the flat would result in a loss to the appellant. On the facts, the Court held that during the period in question the appellant had extended the mortgage on the flat by some $6,200 for the purpose of repaying credit card indebtedness and income tax. His Honour held that the increase in the mortgage debt was not for the purpose of entering into any new venture but was for the purpose of paying existing debts which had not been incurred in reliance on the amount of weekly compensation being received. In support of his application for leave to appeal, Mr J Miller, counsel for the appellant, has submitted that the question of law is whether an omission to sell the flat through being misled by the overpayment is an alteration of the appellant's position. I do not consider that Mr Miller's proposition amounts to a question of law. The issue before His Honour was whether the appellant had altered his position in reliance on the validity of the payments and whether it would be inequitable to require repayment. Those issues are clearly issues which have to be decided on the particular facts of the case. His Honour considered all the facts including the fact that the appellant had elected not to sell the flat but found that he had in fact increased the mortgage on it for the purpose of paying other debts. The Court held that that did not amount to an alteration of his position sufficient to justify the exercise of the discretion in his favour. I do not consider that this raises any question of law which requires determination by the High Court. The application for leave to appeal to the High Court is dismissed. DATED at WELLINGTON this 2 d day of february 2000 bulluddub A W Middleton District Court Judge dca19198.doc (nr)