AGM v SPE

[2013] NZHC 809

NOTE:  PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE HTTP:/ COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-167 [2013] NZHC 809

BETWEEN  AGM Appellant

ANDSPE Respondent

Hearing:         18 April 2013

Counsel:         V A Crawshaw for Appellant

R Hooker for Respondent

Judgment:      18 April 2013

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Penney Patel Law, PO Box 26344, Epsom, Auckland
Vallant Hooker & Partners, PO Box 47088, Ponsonby, Auckland
Counsel:

V Crawshaw, PO Box 4386, Shortland Street, Auckland

AGM V SPE HC AK CIV 2013-404-167 [18 April 2013]

[1]      Ms M appeals against a judgment given in the Family Court at Auckland on

28 November 2012.   Judge Clarkson had  been asked to determine whether the parties  had  entered  into  a  concluded  agreement  to  resolve  relationship  property issues in March 2012.  The Judge found that an agreement had been reached.  On that basis, there was no need for the Family Court to consider any issues that arose if no agreement had been reached.

[2]      On appeal, it will be necessary for this Court to determine whether Judge Clarkson was right in making that finding.  However, if this Court were to allow the appeal, it would be necessary to remit the proceeding to the Family Court to determine the remaining substantive issues.  There would not be sufficient evidence before this Court to enable that exercise to be undertaken.

[3]      Ms  M  has  sought  leave  to  adduce  further  evidence  on  appeal.     The application is brought in reliance on r 20.16 of the High Court Rules.  Such evidence may be adduced only with the leave of this Court.[1]    Leave may only be granted if

there are special reasons for hearing the evidence.[2]   One example of a special reason

is given in r 20.16(3), namely that the evidence relates to matters that have arisen after the date of the decision against which the appeal is brought and is relevant to determination of the appeal.

[1] High Court Rules, r 20.16(1).

[2] Ibid, r 20.16(3).

[4]      There are three aspects to the evidence that Ms M wishes to adduce on appeal.  The first is an updated valuation of a property that the parties owned.  The second concerns correspondence entered into between the parties which was found to have culminated in the concluded agreement.  The third is an affidavit sworn by Ms M on 25 March 2013 and filed in this Court.   That is designed to correct something that, on one view, might be a material error in an affidavit sworn in the Family Court. There is no dispute that any error was inadvertent.

[5]      So far as the new valuation is concerned, having heard from Ms Crawshaw, for Ms M, I am satisfied that there is no reason for it to be put in evidence because it

is not relevant to any point to be determined on appeal.  It is open for Ms Crawshaw to contend in argument that there would inevitably be a risk to her client in agreeing a value for the property at a particular date.  Generally, whether properties rise or fall in value after an intended settlement date depends primarily on external forces.  That being  so,  provision  of  a  valuation  identifying  the  current  market  value  of  the property will not assist the Judge to determine whether Judge Clarkson was right to find a concluded agreement was reached.

[6]      So  far  as  the  correspondence  is  concerned,  Mr  Hooker,  for  Mr  E,  has confirmed  that  all  of  this  evidence  was  before  the  Family  Court,  albeit  in  a haphazard manner.  Ms Crawshaw simply seeks to put the evidence before this Court in a more ordered fashion, so that this Court may consider it in chronological order and in context.

[7]      Given Mr Hooker’s concession that all of the correspondence to which Ms Crawshaw has referred in this aspect of the application is already before the Family Court, it is unnecessary for leave to adduce that evidence to be granted.  It may be put before this Court on appeal.

[8]      The third issue relates to the correcting affidavit.   Plainly that should be before the Court.  Leave to adduce that affidavit on appeal is granted.

[9]      For those reasons, the application for leave to adduce further evidence is dismissed in relation to the new valuation and the correspondence but allowed in respect of the correcting affidavit of 25 March 2013.

[10]     Costs are reserved.   They will be determined by the Judge who hears the appeal, in light of the outcome of it.

[11]     The appeal has been set down for hearing on 15 May 2013.  Ms Crawshaw informs  me  that  filing  of  the  submissions  on behalf  of  Mr  E  and  a  bundle  of authorities remaining outstanding.

[12]     I make the following directions:

(a)       Submissions on behalf of Mr E shall be filed and served by 5pm on 24

April 2013.

(b)      The bundle of authorities shall be filed and served by 5pm on 3 May

2013.

[13]     I confirm that the appeal will be heard on 15 May 2013.

P R Heath J