Holland v Bank of New Zealand [2016] NZCA 436 (12 September 2016)

Last Updated: 22 September 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA317/2016 [2016] NZCA 436
BETWEEN	HELEN PATRICIA HOLLAND AND RICHARD KRISTIAN HENRY HOLLAND Appellants
AND	BANK OF NEW ZEALAND Respondent

Counsel:	A O Thomas for Appellants
Judgment: (On the papers)	12 September 2016 at 3.30 pm

JUDGMENT OF WILD J
[Review of Registrar’s decision on waiver of filing fee]

1. I decline to review the Registrar’s decision not to waive the filing fee on this appeal.

B The Registrar’s decision accordingly stands.
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REASONS

[1] Pursuant to r 7(2) of the Court of Appeal (Civil) Rules 2005, the appellants seek a review of the Registrar’s decision declining their application to waive the $1,100 filing fee for this appeal.^[1] The review application was filed on 30 August.
[2] Rule 7(2) provides that a Judge “may, on application, review any decision of the Registrar under these Rules”. Thus, the Judge has a discretion not to review the Registrar’s decision.
[3] The Registrar’s decision was made on 3 August by Deputy Registrar Chris Abraham. Having pointed out that the fee waiver application was based on financial hardship, Deputy Registrar Abraham stated:

Based on all the information provided, I am of the view that you are in a position to secure payment of the filing fee. I acknowledge that you have a high level of debt. However, you also have a substantial weekly income and a high level of your spending appears to be discretionary.

I now require that the filing fee of $1,100.00 be paid by Wednesday, 31 August 2016.

[4] This appeal, filed on 8 July, is against a judgment of Associate Judge Christiansen delivered in the High Court at Auckland on 14 June 2016.^[2] The Associate Judge entered, against the appellants and for the Bank of New Zealand (BNZ), summary judgment in the sum of $336,465.80 together with interest of $1,183.18. That judgment was entered upon a loan agreement dated 22 November 2011, pursuant to which the appellants guaranteed repayment of $415,000 lent by BNZ to Mrs Holland.
[5] The notice of appeal filed is a carefully detailed one. It states that the appellants’ solicitor is Mr A O Thomas of Thomas Law in Remuera, Auckland. Although the Associate Judge’s judgment does not record the parties’ solicitors, I note that the appellants were represented by Mr C T Patterson at the hearing before the Associate Judge.
[6] Following the filing of this appeal on 8 July, security for the costs of the appeal was fixed at $6,600 in terms of r 35, and the Registry so advised the appellants’ solicitor by letter dated 13 July. By letter dated 5 August the appellants applied either to dispense with security or for an order deferring payment by “no less than two months”. BNZ filed a notice in opposition on 26 August. Presently, this Court’s Registry is awaiting a response to a request it made on 29 August for further financial information from the appellants in order to deal with the appellants’ application.
[7] The financial information provided by the appellants to this Court’s Registry on 8 July and 2 August includes the following:

• (a) The appellant Mrs Holland was made redundant from her occupation as a barrister (we assume an ‘employed barrister’) on 4 July 2016 and, as of 2 August, had not found another job.
• (b) The appellant Mr Holland advises “In 2013 I was struck off as a solicitor. I have been unemployed since”. Mrs Holland confirms this. She describes Mr Holland as an “unemployed/writer/model maker”.
• (c) The parties had, prior to Mrs Holland’s redundancy, a weekly income of $2,203.54 and regular total weekly expenses of $2,230. In other words, they were spending slightly more than they were earning.
• (d) The parties’ only assets are household and personal chattels. Their car is leased.
• (e) The appellants have the following debts and liabilities:

NZ Law Society	$180,000 plus costs
D. Harris	$100,000
BNZ	$25,000
ANZ	$30,000
ASB	$2,000
Amex	$3,000
Life assurance arrears	Approximately $1,600
Commercial rent arrears	Approximately $30,000
School fees	$18,000[3]
Car lease arrears	$_______[4]
Professional fees, including legal fees	$25,000
Accountant	$30,000
Income tax	$_______[5]
Owed to friends and family “informally”	Approximately $40,000
Total (excluding car lease and income tax arrears)	$484,600

[8] To that indebtedness can be added the summary judgment challenged on this appeal, resulting in total indebtedness of over — probably now well over — $822,249.
[9] I have set all this out because it appears to me that the appellants are deeply insolvent. Given that circumstance, it seems to me quite artificial for the appellants to be seeking a review of the Registrar’s decision not to waive the $1,100 filing fee on this appeal when the appellants appear to have no resources to fund any aspect of this appeal. Or, to put the matter differently, the Registrar’s decision must be reviewed in the light of the appellants’ financial predicament as disclosed to the Court. The appellants have no surplus income. Indeed, at present it appears they have no income at all. They have no disposable assets. They have debts of well over $800,000. So, how are the appellants proposing to pay security for the costs of the appeal, if it is not dispensed with (and so far it has not been)? How are they going to pay the hearing fees for this appeal — a minimum of $1,350? Are the appellants to be legally represented in this appeal and, if so, how are they proposing to meet the costs of that representation? It appears, from the list of debts I have set out in [7](e) above, that they have not met the costs of their legal representation in the High Court and/or the costs the Associate Judge ordered them to pay to BNZ.
[10] To sum up all this, it seems to me pointless to review a decision on the filing fee for this appeal in a vacuum, without regard to the overall financial position of these appellants and their seeming inability to fund any aspect of this appeal. Until and unless I have answers to the questions I have posed in [9] above I am not prepared to embark on a seemingly pointless and artificial exercise.
[11] If the appellants wish to pursue their application for review, then they need to file a memorandum, promptly, addressing the questions I have set out in [9] above. They will need to persuade me that there is some point in reviewing the Registrar’s decision not to waive the filing fee. In order to persuade me, they will need to explain how, realistically, they are proposing to fund the various aspects of this appeal.
[12] Any further memorandum filed by the appellants should be referred back to me promptly.
[13] In the meantime, my formal decision is to decline to review the Registrar’s decision not to waive the filing fee on this appeal. The Registrar’s decision accordingly stands.

Solicitors:
Thomas Law, Auckland for Appellants

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^[1] Alternatively, the appellants applied to postpone payment of the filing fee (no postponement date specified).

^[2] Bank of New Zealand v Holland [2016] NZHC 1275.

^[3] They apparently relate to the appellants’ 18 year old daughter, now a university student living at home. Mrs Holland states “I have not included payments owing to previous schools as not making them at the moment”.

^[4] Mrs Holland states “Am contacting to confirm this. This is the only transport my family has.”

^[5] Mrs Holland states “Need to refer to accountant, and endeavouring to make arrangements. My circumstances have deteriorated due to my husband not working since February 2013”.