Wootton v Wootton [2020] NZCA 654 (17 December 2020)

Last Updated: 23 December 2020

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

CA566/2020 CA600/2020 [2020] NZCA 654

	BETWEEN	MARGARET ANN WOOTTON Appellant
	AND	PHILLIP GARRY WOOTTON Respondent

Counsel:	Applicant in person E J Collins for Respondent
Judgment: (On the papers)	17 December 2020 at 10.30 am

JUDGMENT OF CLIFFORD J
Review of Deputy Registrar’s decision

The applications to review the Deputy Registrar’s decision are declined.
____________________________________________________________________

REASONS

Introduction

• [1] This is an application by Margaret Wootton to review three decisions made by the Deputy Registrar relating to these two appeals, CA566/2020 and CA600/2020.

Background

• [2] Ms Wootton and Phillip Wootton separated in January 2006 after some 12 years of marriage. That marriage was dissolved in June 2008. The division of their relationship property was resolved by way of a consent order made by the Family Court dated 2 July 2008.
• [3] In February 2020 Ms Wootton lodged caveats against the titles of three properties owned by the trustees of Mr Wootton’s family trust, properties acquired since the Wootton’s marriage was dissolved. In response to Mr Wootton’s opposition, Ms Wootton applied for an order to sustain those caveats.
• [4] That application was eventually set down for hearing on 5 October 2020. On 1 October 2020 Edwards J declined various interlocutory applications Ms Wootton had made in that caveat proceeding which would have had the effect, amongst other things, of deferring the then scheduled 5 October hearing.^[1] The applications included one for leave to appeal to this Court if the Judge ruled against her. In her rulings declining Ms Wootton’s various applications, Edwards J also declined Ms Wootton’s application for leave to appeal those rulings to this Court.
• [5] In CA566/2020, initially filed on 5 October 2020, Ms Wootton now applies to this Court for leave to appeal those rulings.
• [6] The 5 October hearing took place as scheduled. On 13 October 2020 Associate Judge Johnston issued his judgment dismissing Ms Wootton’s contested application to sustain the caveats.^[2] As the Associate Judge put it:^[3]

This means that Mr Wootton is entitled to require the removal of the caveats over the two properties owned by the trustees of his family trust, and to the immediate release of the monies held in trust by Collins & May being the proceeds of the sale of the third property.

• [7] In CA600/2020, by notice of appeal dated 18 October 2020, Ms Wootton appeals that decision as of right to this Court. On 4 November 2020 this Court granted Ms Wootton’s application for a stay of that judgment pending disposition of her substantive appeal.^[4]
• [8] These are applications by Ms Wootton to review decisions of the Deputy Registrar:

(a) In CA566/2020:

(i) accepting out of time Mr Wootton’s notice of opposition to her application for leave to appeal; and subsequently

(ii) declining to refund the filing fee of $1,100 paid by Ms Wootton on that application for leave.

(b) In CA600/2020, accepting out of time the notice of appearance filed by Mr Wootton.

Review

CA566/2020: Accepting notice of opposition out of time

• [9] Ms Wootton, as noted, initially applied in CA566/2020 for leave to appeal the High Court’s interlocutory rulings on 5 October 2020. At the same time, she applied to this Court to stay the High Court’s substantive hearing scheduled for that same day. Brown J issued a results judgment that day, declining that application.^[5] The Judge provided his reasons for that judgment in his decision of 7 October 2020.^[6]
• [10] Ms Wootton filed a further application for leave to bring her appeal against the High Court’s 1 October 2020 rulings on 8 October 2020 to correct, she explained, some typographical and similar mistakes she had identified in her 5 October application.
• [11] On 2 November 2020 Ms Wootton filed an affidavit of service, dated that same day, of having served the documents she had filed with this Court on 5 and 8 October respectively on Mr Wootton by email on 8 October and 12 October to his solicitor’s address.
• [12] Where a respondent is served with a copy of an application for leave to appeal r 19A of the Court of Appeal (Civil) Rules 2005 requires the respondent, within 10 days of that service, to file and serve a memorandum stating whether the respondent consents to or opposes the application. Accordingly, Mr Wootton’s notice of application was required to be served in accordance with r 19A by, at the latest, 22 October. No such memorandum had been received from Mr Wootton when Ms Wootton filed her affidavit of service on 2 November.
• [13] In response to a query from the Deputy Registrar, Mr Wootton’s solicitor observed that he thought the matter was now proceeding by way of an appeal as of right. It would appear he had reached that conclusion after it had been pointed out by this Court that CA600/2020 could, as already noted, have proceeded as of right rather than with leave.
• [14] In the circumstances, the Deputy Registrar’s decision to accept Mr Wootton’s r 19A memorandum was a sensible one, and it involved no prejudice to Ms Wootton. It was not a dispensation required by the rules: r 19B(2) provides that an application for leave to appeal must be determined in accordance with rr 23 to 27, which call for a decision on the papers, where either the respondent opposes the application or does not comply with r 19A.
• [15] Ms Wootton’s application to review that decision is declined.

CA566/2020: Declining to refund filing fee

• [16] Ms Wootton paid the filing fee of $1,100 for her application for leave to appeal on 5 October 2020. She applied on 8 October for that fee to be refunded, saying that she was unable to pay the fee and that the fee related to a proceeding that concerned a matter of genuine public interest. In doing so she advised she had weekly income, after tax, of $527.84, total weekly expenses of $453.71 and that, accordingly, paying the fee would affect her debt levels and increase the interest on her overdraft and Visa debt until the balance was paid off.
• [17] No matter of general importance is raised by any appeal that might be mounted against the terms of the High Court’s interlocutory orders. If there is any matter of public importance in the underlying substantive dispute, Ms Wootton has her appeal as of right. Moreover, we agree with the Deputy Registrar’s assessment that Ms Wootton did not establish undue financial hardship. While her outgoings may increase, the material she has provided does not suggest the surplus of income over expenses she describes in her application would cease. Ms Wootton’s application to review the Deputy Registrar’s decision is, accordingly, also declined.

CA600/2020: Accepting out of time notice of appearance

• [18] Ms Wootton filed her application for leave to appeal Associate Judge Johnston’s substantive judgment on 19 October 2020. On 6 November Ms Wootton filed an affidavit of service, confirming service on Mr Wootton of what was then her application for leave on 19 October. Treating that application for leave as a notice of appeal as of right, r 33A required Mr Wootton to file his notice of appearance, as Ms Wootton acknowledged, by 3 November. The extension granted by the Deputy Registrar by way of acceptance of the filing of that notice on 4 November falls squarely within the Registrar’s powers under r 5A(1)(c)(ii). A brief extension of time to file a purely procedural document where there is no material prejudice to Ms Wootton is precisely the situation r 5A(1)(c)(ii) was designed for and the Deputy Registrar was clearly correct to exercise that power.
• [19] Ms Wootton’s application to review that decision of the Deputy Registrar is also declined.

Result

• [20] These three applications by Ms Wootton to review decisions of the Deputy Registrar are declined.

Solicitors:
Collins & May Law, Lower Hutt for Respondent

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^[1] Wootton v Wootton [2020] NZHC 2584.

^[2] Wootton v Wootton [2020] NZHC 2684.

^[3] At [19].

^[4] Wootton v Wootton [2020] NZCA 542.

^[5] Wootton v Wootton [2020] NZCA 474.

^[6] Wootton v Wootton [2020] NZCA 478.