A v C HC Auckland CIV 2005-404-3123

[2007] NZHC 1828

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2005-404-3123

IN THE MATTER OF     the Property (Relationship) Act 1976

BETWEEN  A Applicant

ANDC Respondent

Hearing:         12 June 2007

Appearances: R Weir for applicant

D Gay for respondent Judgment:  12 June 2007 at 10 am Reasons:  14 June 2007

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 14 June 2007 at 10 am pursuant to Rule540(4) of the

High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel

Mathew Tetley-Jones, Auckland Wadsworth Ray, Epsom (J D Ray) S Abdale, Barrister, Auckland

DRI Gay, Barrister, Auckland

A V C HC AK CIV 2005-404-3123  12 June 2007

[1]      This proceeding is set down for a one day hearing in the week commencing

25 June 2007.   The only issue before the Court at that hearing will be the issues defined in my judgment of 29 September 2004, as follows:

The  proper  valuation  of  the  shares  [in  AHL],  the  appropriate  date  of valuation (for the purposes of s 2G [of the Property (Relationships) Act

1976] and compensation for [A].

[2]      The applicant [A] seeks an adjournment on the grounds that the police have charged [C] under s 229(a)(b) of the Crimes Act, with using a document for the purpose of obtaining a pecuniary advantage.   This charge relates to the alleged forging of [A]’s signature on a Memorandum of Transfer document in 1992.   [A] says that the fraud alleged relates to relationship property (a former family home) and “co-relates to the assets of AHL” and is therefore of central relevance to the civil proceedings.  Accordingly, it is said that [A] will be prejudiced in having the civil proceedings determined before the outcome of the criminal proceedings.

[3]      Before me, counsel appearing for [A], Mr Weir, submitted that the issue on this adjournment application is whether a determination of this proceeding prior to the hearing of the criminal charges will mean that justice is not done as between the parties.   He submits that it is in the interests of justice that the adjournment be granted as proper determination of the issues prior to the hearing of the criminal charges was unlikely.  When pressed as to why that should be so, counsel said that the principal witness in the criminal trial will be [A], and she will give evidence that the matrimonial assets have been secreted away by [C] and that AHL has been the vehicle he has used for that purpose.   That evidence will also be key to the determination of the matters at issue in the forthcoming hearing in this proceeding. The matters for hearing in the week commencing 25 June 2007 cannot therefore be fully explored prior to the criminal proceeding being heard and determined.  He also says that if [C] gives evidence at the hearing, then he could object to answering questions on the grounds that the answer might tend to incriminate him.

[4]      Notwithstanding  these  submissions,  it  is  not  apparent  how  the  on-going criminal  proceeding  will  effect  the  ability of  [A]  to  place  before  the  Court  all

evidence relevant to the issues for determination at that hearing.  The allegation of forgery is one of long standing, and so does not indicate a new line of inquiry.  I note the point raised in relation to [C] being entitled to claim a privilege against self- incrimination, but counsel for [C] confirms that [C] does not intend to give evidence at the hearing.  Although notionally it may be possible for [A] to subpoena [C], that has not happened.

[5]      During the course of the hearing, counsel for [A] sought leave to add an additional ground for the adjournment, namely that [A] is unwell and has a letter from her doctor saying that it will be difficult for her to deal with the hearing on 25

June 2007 because of ill-health, and in particular because of the depression she is subject to.

[6]      I do not attach much weight to this ground.   Although the hearing of this application for adjournment was set down in late May 2007 and the application itself was made in early May 2007, the ground relating to [A]’s health was only raised part way through the hearing of the application.  Counsel for [A] could not confirm that [A] was to give evidence at the forthcoming hearing in this proceeding.  Her current counsel has acted for [A] for many years in relation to this hearing and I anticipate that [A]’s involvement in the one day hearing should be minimal.  There is also no suggestion in the doctor’s letter as to when [A]’s health will allow the proceeding to continue.

[7]      If I am to take into account [A]’s health on the basis of evidence tendered from the bar, as conceded by Mr Weir, it is also appropriate I take into account [C]’s health.  Counsel for [C] says that [C] has been diagnosed in the last nine months with an advanced cancer and a serious cardiac condition.   His surgeon is unwilling to operate until his heart condition stabilises, and the latter condition is said to be aggravated by stress, including the stress of this proceeding.  [C] wishes to have this litigation behind him.

[8]      Weighing all of these matters I am not satisfied that it is in the interests of justice that there be an adjournment of the June hearing.   The existence of the criminal  prosecution  is  unlikely  to  have  any  impact  upon  the  hearing,  and  in

particular the ability of [A] to place before the Court all relevant material. Considerations as to the [A]’s health were only raised as an after thought by her counsel, and in any case are more than outweighed by [C]’s legitimate interest in a final disposition of this issue which has been outstanding since my judgment on appeal in September 2004.   The resolution of this issue should have been readily achievable.  It has been unnecessarily delayed, in large part, through [A]’s conduct. (See my judgments 20 June 2006 and 22 September 2006).

[9]      Mr Gay for [C] seeks costs on this application.  There is no reason why costs should not follow the event.  I award costs in [C]’s favour on a 2B basis.

[10]     Mr Gay also seeks the making of an unless order in respect of those costs, and the costs ordered to be paid by [A] in respect of an earlier application (order sealed 27 September 2006).  The making of an unless order is opposed by [A] who says that [C] owes her money in respect of the earlier Family Court judgment. Mr Gay confirms that the Family Court did not direct the payment of any fixed sum, but rather ordered the taking of account between the parties.  The September 2006 order of this Court for costs has now been outstanding for nearly 9 months, and it is appropriate [A] pay those costs.  Accordingly, unless [A] makes payment of the sum of $4,930.00 in costs outstanding by Friday 22 June 2007 I order that she will be debarred from appearing and will not be heard at the s 38 hearing scheduled for the week commencing 25 June 2007.  I do not make an unless order in respect of the costs ordered on the application for adjournment.

[11]     The final issue arising is the extent of evidence to be produced at the hearing. The  hearing  is  set  down  for  one  day  only.    Directions  for  that  hearing  have proceeded on the basis that Mr Hagen will be called to confirm his report and be cross-examined.

[12]     [A] has not previously indicated that she proposes calling any additional witnesses.   In terms of   Rule 441B, she is now out of time for service of witness briefs.  Mr Weir today expressed surprise that the Court and [C] understood that only Mr Hagen is to be called at the hearing.  He said that he anticipated that [A] would wish to call her own accounting expert, Mr Leonard.

[13]     Mr Weir is not counsel instructed for [A] in relation to the hearing, and appears on the adjournment application only.  He nevertheless asks that the filing of further evidence for [A] for the hearing be timetabled.

[14]     [A] is to file and serve any briefs for witnesses she proposed to call by 5.00 pm, Monday 18 June 2007.  I do not grant leave that such evidence be adduced, and reserve leave to [C] to object to the receipt of such evidence should the further evidence, and in particular its late provision, be likely to jeopardise the fixture or cause illegitimate prejudice to [C].

[15]     The proceeding is to be called before me at 9.00 am, Wednesday 21 June

2007, for a telephone conference.

Winkelmann J