Gibson v Official Assignee [2015] NZCA 224 (9 June 2015)

Last Updated: 23 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA246/2015 [2015] NZCA 224
BETWEEN	NEVILLE JAMES GIBSON Appellant
AND	OFFICIAL ASSIGNEE Respondent

Counsel:	Appellant in person P Shackleton for Respondent
Judgment: (On the papers)	9 June 2015 at 3 pm

JUDGMENT OF MILLER J
[Review of Registrar’s decision]

1. The application for review of the Registrar’s decision is dismissed.

2. By 25 June 2015 the appellant must re-apply with adequate disclosure or pay the fee.

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REASONS

[1] Mr Gibson moves for review of a Registrar's decision refusing his application for a fee waiver.
[2] The fee concerned, $1,100, is for an application to extend time for appealing a decision of Katz J.^[1] That decision stated that pt 18 of the High Court Rules, rather than pt 20, governs an application to that Court for review under s 226 of the Insolvency Act 2006 of decisions made by the Assignee in the administration of a bankrupt estate. Mr Gibson is a bankrupt.
[3] It is unclear whether anything substantive turns on the point of law — Katz J doubted it, observing that either procedure can be made to meet the justice of the case — but it is genuinely arguable. Mr Gibson's delay was very short and he has explained it. So I approach the matter on the assumption that the appeal has some prospects of success, so far as it goes. I do not accept that it is a matter of significant or substantial public interest for purposes of r 5(4) of the Court of Appeal Fees Regulations 2001.
[4] I also accept that, Mr Gibson evidently having been unable to get any lawyer to act for him, the Registrar ought not to have refused his application on the ground that he had not applied for legal aid; he did say that he intended to do so, but he needs a lawyer to make the application.
[5] However, Mr Gibson has produced no evidence that he cannot pay the fee. He simply says in his application that he is "a bankrupt in NZ". However, bankruptcy is not a criterion for waiver. The criterion is inability to pay, and that is a question of fact.^[2] He lives in Australia and he is evidently not bankrupt there. Under r 5(3) of the Court of Appeal Fees Regulations 2001 he must demonstrate that he will suffer "undue financial hardship" if he is required to pay. It will suffice if he can confirm, with some supporting evidence, that he is financially dependent on some form of state benefit (such as an unemployment benefit) or otherwise supply evidence to the reasonable satisfaction of the Registrar that he lacks income or assets to pay the fee.
[6] The application for review is accordingly dismissed.
[7] However, Mr Gibson may not have appreciated that he must disclose all his sources of financial support, whether in New Zealand or elsewhere. The form he was given does not make that clear. So he will be given a second opportunity. By 25 June 2015 he must either pay the fee or supply adequate evidence of his financial circumstances and re-apply to the Registrar.

Solicitors:
Crown Solicitor, Auckland for Respondent

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^[1] Gibson v Official Assignee HC Auckland CIV-2015-404-429, 1 April 2015 (Teleconference minute of Katz J).

^[2] Court of Appeal Fees Regulations 2001, s 5(2)(a).