Marshall v Singleton [2020] NZCA 105 (22 April 2020)

Last Updated: 1 May 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA569/2019 [2020] NZCA 105

	BETWEEN	PETER JAMES MARSHALL Appellant
	AND	ANN ELIZABETH SINGLETON AND SUSAN HAZEL MARSHALL Respondents

Counsel:	Appellant in person P J Stevenson for Respondents
Judgment: (On the papers)	22 April 2020 at 11.00 am

JUDGMENT OF BROWN J
(Review of Deputy Registrar’s decision)

The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined. Security for costs of $7,060 is payable by 21 May 2020.
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REASONS

Introduction

[1] The testator, who died on 11 January 2018, left a will dated 11 April 2015 (the 2015 will) dividing his estate equally among his four adult children who included the appellant and the respondents. The appellant was named as executor of the 2015 will. In the weeks prior to the testator’s death another document was prepared, but which the testator did not sign, which would have had the effect of altering the distribution of his estate among the children.
[2] The respondents applied in the High Court under s 19(1) of the Administration Act 1969 for orders nisi for the administration of the estate pursuant to the terms of the 2015 will. The appellant applied to have the unsigned document declared a valid will under s 14 of the Wills Act 2007 (the Act).
[3] In a judgment delivered on 1 October 2019 Venning J dismissed the application under s 14 and made orders for the administration of the estate including the appointment of an independent person as executor and trustee.^[1] The appellant appeals against both aspects of the judgment.
[4] By letter dated 30 October 2019 the appellant was advised by the Registry that security for costs had been set at $7,060 and this was required to be satisfied by 27 November 2019. The appellant made an application for dispensation from the requirement to pay security for costs. In a decision dated 5 February 2020 the Deputy Registrar declined the application for dispensation.
[5] The appellant now seeks a review of that decision which is opposed by the respondents.

Relevant principles

[6] The principles applicable to dispensation from security for costs were reviewed by the Supreme Court in Reekie v Attorney-General.^[2] The Court stated that the Registrar should dispense with security if of the view that it is right to require the respondent to defend the judgment under challenge without the usual protection as to costs provided by security.^[3] The Court explained:

[35] ... we consider that the discretion to dispense with security should be exercised so as to:

(a) preserve access to the Court of Appeal by an impecunious appellant in the case of an appeal which a solvent appellant would reasonably wish to prosecute; and

(b) prevent the use of impecuniosity to secure the advantage of being able to prosecute an appeal which would not be sensibly pursued by a solvent litigant.

A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed with an appeal where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent’s costs if unsuccessful). As should be apparent from what we have just said, analysis of costs and benefits should not be confined to those which can be measured in money.

[7] The Court also ruled that the review function of the judge in relation to security for costs is to be exercised de novo.^[4]

The Deputy Registrar’s decision

[8] The Deputy Registrar commenced by noting that the appellant’s application was not a typical application for dispensation of security in that it was not based on any of the Reekie factors but on the ground that security for costs was unnecessary because funds were available to be paid to the respondents from the cash held by the estate on behalf of the appellant.
[9] While accepting that it may be appropriate to dispense with the requirement to pay security for costs when the respondents already have some form of security, the Deputy Registrar was not satisfied that the present was such a case. She accepted Ms Stevenson’s submissions that there is presently no valid provision for the appellant pursuant to the 2015 will, Venning J having found that the disposition to the appellant would prima facie be void under s 13(2) of the Act because the appellant’s partner had witnessed the 2015 will.
[10] The Deputy Registrar further observed that even if funds were held by the estate for the appellant, that would not be a substitute for actual payment of security and any costs order against him would still require enforcement.^[5]

The application for review

[11] The appellant’s request for a review of the Deputy Registrar’s decision was an informal application in the form of a brief email. He reiterated his primary contention that there are funds held by the estate on his behalf which are available to be paid to the respondents if his appeal is unsuccessful. He contended that it was misleading to claim otherwise given first the fact that the judgment recorded that the respondents would not impose an application by him under s 13(2)(b) of the Act to validate the disposition to him under the 2015 will and secondly that the Judge stated that that issue could be addressed by a pro forma originating application with the respondents’ consent endorsed.^[6]
[12] The appellant further stated that since his father’s death in January 2018 he has had sole responsibility for administering the estate, that he has had to personally pay for insurance and rates as well as organising the storage of the estate’s chattels until probate was granted and that he had not received any financial support in that regard from the respondents. He contended that the funds owed to him personally by the estate far exceed the amount fixed as security for costs.
[13] He concluded with a submission which I construe to be that waiving the requirement for security would assist him in continuing to meet his obligations as the executor of the estate.
[14] The respondents filed a comprehensive notice of opposition to the application for review, salient features of which are referred to in the discussion below.

Discussion

[15] This application to dispense with the requirement for security for costs is an unusual one. The application considered by the Deputy Registrar simply asserted that if the appeal was unsuccessful funds were available to be paid from cash held by the estate on behalf of the appellant. As the respondents observed in their notice of opposition filed on 9 December 2019, the appellant did not provide the Court with any evidence of his financial circumstances, with the consequence that not only was there no evidence that the appellant was impecunious but there was no evidence as to his financial position at all.
[16] I recognise that it was the testator’s intention that a substantial bequest be made to the appellant in the 2015 will. While that bequest is prima facie void because the 2015 will was witnessed by the appellant’s partner, that impediment is able to be overcome by an application for validation of the disposition under s 13(2)(b) of the Act. However, as the respondents correctly observe in their notice of opposition to the review, it is for the appellant to take the necessary steps to have the provision in the will validated, not the respondents. Thus far he has apparently failed to do so.
[17] The respondents also take issue with the appellant’s submission that he has had sole responsibility for the administration of his father’s estate. They submitted that, while in the High Court proceeding it was not disputed that the appellant had taken steps with regard to the assets of the estate, he had done so without the authorisation of the other beneficiaries and without proper appointment as executor. I accept the respondents’ challenge to the appellant’s contention that a waiver of the requirement for security would enable him to continue to meet his obligations as executor of the estate. The appellant has no obligation or entitlement to do so given the appointment of an independent person as executor and trustee. I note that the appellant does not appear to have lodged an application for stay of execution of that aspect of the judgment under appeal.
[18] I also accept the submission for the respondents that there was no evidence before the Court to substantiate the appellant’s contention that funds owed to him by the estate on account of payments that he has made in effect on the estate’s behalf exceed the amount which has been fixed by way of security. Therefore I do not accept the appellant’s contention that an off-set should be recognised as the basis for a waiver of the security obligation.
[19] Consequently the appellant has failed to demonstrate that the present case is one which falls within the category where security for costs should be properly dispensed with.

Result

[20] The application to review the Deputy Registrar’s decision declining to dispense with security for costs is declined. Security for costs of $7,060 is payable by 21 May 2020.

Solicitors:
McVeagh Fleming, Auckland for Respondents

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^[1] Singleton v Marshall [2019] NZHC 2486.

^[2] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

^[3] At [31].

^[4] At [23].

^[5] Citing Richard Zhao Lawyers Ltd v Family Court at Auckland [2015] NZCA 596 at [31].

^[6] Singleton v Marshall, above n 1, at [87]–[88].