Court finds proposed caveat appeal does not raise a question of genuine public interest
The Court of Appeal of New Zealand has declined an application to review a deputy registrar’s refusal to waive the filing fee for a proposed appeal involving a caveat lodged by the law firm Livingston & Livingston Limited over disputed legal fees.
The applicant in Dai v Livingson & Livingston Limited [2026] NZCA 478 sought an extension of time to appeal a High Court judgment ordering that the caveat not lapse. Livingston & Livingston had lodged the caveat over property owned by a company owned by the applicant to secure disputed legal fees of about $3,500.
When seeking the extension, the applicant also applied for a filing fee waiver, arguing that the proceeding concerned a matter of genuine public interest and was unlikely to continue unless the fee was waived.
The deputy registrar accepted that the proceeding was unlikely to continue without a waiver. However, she found that it did not satisfy the genuine public interest criterion, which required the proceeding to determine a question of law of significant interest to the public or a substantial section of the public.
The underlying dispute arose after Livingston & Livingston performed legal work in 2023. A dispute over its fees developed, leading to a complaint to the Law Society. A standards committee decided to take no further action, and the applicant sought a review by the legal complaints review officer.
The firm lodged the caveat in reliance on its terms of engagement, which provided security over property for its fees and authorised it to register a caveat or mortgage.
In the first High Court judgment, the court found Livingston & Livingston had a reasonably arguable case supporting the caveat. Email evidence provided the basis for finding that it was arguable the applicant had agreed to the terms of engagement. The court also found it reasonably arguable that the applicant’s name in emails constituted a valid signature for the writing requirements under s. 24(1) of the Property Law Act 2007.
The applicant later sought rescission of the decision sustaining the caveat. The High Court treated the application as an application to recall the first judgment and dismissed it after finding that none of the matters raised met the test for recall.
For the fee waiver, the applicant argued that the proposed appeal raised public-interest issues involving alleged misuse of Livingston & Livingston’s Land Information New Zealand (LINZ) e-dealing account, the process through which the caveat was lodged, LINZ’s responses to requests for information under the Official Information Act 1982, and a series of abusive communications alleged to have been sent to Livingston & Livingston from an email address bearing the applicant’s name. The applicant denied responsibility for the messages and said she was a victim of identity fraud.
The Court of Appeal found those issues appeared to have been raised in the context of the second High Court judgment, rather than the first judgment for which the applicant sought an extension of time to appeal.
The first judgment concerned whether Livingston & Livingston had a reasonably arguable case to support the interest in land protected by the caveat. The issue turned on the terms of engagement.
The Court of Appeal therefore agreed with the deputy registrar that the matters raised did not constitute matters of genuine public interest and declined the application for review.
