Rangi-Niwa v Niwa [2013] NZHC 2894 (4 November 2013)

Last Updated: 21 November 2013

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV 2013-443-301 [2013] NZHC 2894

UNDER the Family Protection Act 1955

IN THE MATTER OF an appeal from Interlocutory Orders made in the Family Court in the matter of FAM-

2013-043-0115

AND

IN THE MATTER OF the estate of JOSEPH (HOHEPA) TE PARA RANGI-NIWA, Deceased

BETWEEN AUBURNE ALANOR RANGI-NIWA Appellant

AND PAULA FRANCES NIWA Respondent

Hearing: 1 November 2013 (by telephone) Counsel: S C Herbert for Appellant

S W Hughes QC for Respondent, in personal capacity

S E Gifford for Respondent, as administrator of the deceased estate

Judgment: 4 November 2013

_{JUDGMENT OF HEATH J}

This judgment was delivered by me on 4 November 2013 at 11.00am pursuant to

_{Rule 11.5 of the High Court Rules}

Solicitors:

Law West, New Plymouth Quin Law, New Plymouth Counsel:

Registrar/Deputy Registrar

S W Hughes QC, New Plymouth

_{S E Gifford, New Plymouth}

RANGI-NIWA v NIWA [2013] NZHC 2894 [4 November 2013]

[1] Ms Rangi-Niwa appeals against an interlocutory judgment, given by Judge

Twaddle in the Family Court at New Plymouth on 16 September 2013.¹

[2] In the Family Court, Ms Rangi-Niwa seeks further provision from the estate of her late father, Joseph Niwa. He died in Costa Rica on 4 September 2011, intestate. She applies under both the Family Protection Act 1955 and the Law Reform (Testamentary Promises) Act 1949.

[3] Letters of Administration were granted in favour of the deceased’s wife, Mrs

Paula Niwa, in February 2012.

[4] In his judgment of 16 September 2013, Judge Twaddle dealt with some interlocutory applications. The only order actually made was to dismiss an application for discovery that Ms Rangi-Niwa had made.² She appeals against that decision, and raises concerns about other issues raised by her, with which the Judge did not expressly deal.

[5] The appeal came before me on 1 November 2013, for a case management conference. Subject to one issue³ the parties are content for standard directions to apply under Schedule 6 of the High Court Rules, on the basis of a hearing for one half-day.

[6] The one outstanding issue concerns security for costs. Rule 20.13 of the

High Court Rules provides:

20.13 Security for appeal

(1) This rule applies to an appeal other than an appeal for which the appellant has been granted legal aid under the Legal Services Act 2000.

(2) The Judge must fix security for costs at the case management conference relating to the appeal, unless the Judge considers that in the interests of justice no security is required.

(3) The amount of security must be fixed in accordance with the following formula, unless the Judge otherwise directs:

¹ _{Rangi-Niwa v Niwa FC New Plymouth FAM 2013-043-115, 16 September 2013.}

² _{Ibid, at para [12].}

³ See para [6] below.

where—

1. is the daily recovery rate for the proceeding as classified by the Judge under rule 14.4; and

2. is the number of half days estimated by the Judge as the time required for the hearing.

(4) Security must be paid to the Registrar at the registry of the court no later than 10 working days after the case management conference, unless the Judge otherwise directs.

(5) Except in the case of an appeal under the District Courts Act 1947 (where non-compliance with the security order results in a deemed abandonment of the appeal under section 74), if the security is not paid within the time specified under subclause (4), the respondent may apply for an order dismissing the appeal.

(6) The Judge must defer the fixing of security until the application for legal aid has been determined if—

(a) an appellant has applied for legal aid under the Legal

Services Act 2000; and

(b) at the time of the case management conference, the application has not been determined.

(Emphasis added)

[7] Ms Rangi-Niwa has not applied for legal aid. Mr Herbert, whom she wishes to instruct, is not a registered provider of legal aid services. Mr Herbert has confirmed to me that he has advised Ms Rangi-Niwa on her right to apply for legal aid and that she has made an informed decision not to.

[8] Mr Herbert submits that Ms Rangi-Niwa is impecunious. On the basis of her affidavit of means, he contends that I should either dispense with the need to give security for costs, or direct the Registrar to accept a first charge over Ms Rangi- Niwa’s contingent interest in her late father’s estate.

[9] Ms Rangi-Niwa also seeks waiver of Court fees. The Registrar has asked me to deal with that application.

[10] For an appeal for one half-day, the quantum of security for costs that would need to be paid is $995. In the context of an appeal which will put the estate, and possibly Ms Niwa personally, to much greater cost than that, the amount to be paid is

not high. If there were any merit in the suggestion that a charge over the contingent interest in the estate could equate to a sum of money paid into Court as security for costs, no doubt Ms Rangi-Niwa could obtain a loan on the faith of that interest.

[11] I do not consider that it is appropriate for Ms Rangi-Niwa, as a litigant who has expressly declined the opportunity to apply for legal aid, to give security in that alternative manner, or to have the obligation to pay security waived. It is not in “the interests of justice” for either variation to the standard requirements to be made.⁴

The purpose of security for costs is to protect the other party for costs if an appeal

were unsuccessful. Ms Rangi-Niwa, having elected not to seek legal aid (which would have changed the default position),⁵ there is no reason why security should not be posted.

[12] The application to waive Court fees raises a different question; one of access to justice. On the basis of the affidavit as to means I am satisfied that such fees should be waived.

[13] I decline to waive security for costs. Further, I am not prepared to allow security to be given in some other way. I allow the application to waive filing fees.

[14] I direct that security for costs in the sum of $995 be paid to the Registrar of this Court on or before 22 November 2013.⁶ Otherwise, standard directions for the appeal are made, in terms of Schedule 6 to the High Court Rules.

[15] The appeal is to be set down for hearing on the first available date in 2014, for one-half day. The Registrar shall allocate a date and advise counsel accordingly.

_{P R Heath J}

_{Delivered at 11.00am on 4 November 2013}

⁴ _{High Court Rules, r 20.13(2), set out at para [6] above.}

⁵ _{Ibid, r 20.13(1).}

⁶ Ibid, r 20.13(4).