Akr v SP HC Auckland CIV 2011-404-002998

[2011] NZHC 1963

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-002998

UNDER  the Family Proceedings Act 1980

BETWEEN  A K R Appellant

AND  S P

First Respondent

AND  C H L

Second Respondent

Hearing:         7 December 2011

Counsel:         J Hunter for the Appellant

DAT Hollings QC for the First Respondent
No Appearance for the Second Respondent

Judgment:      7 December 2011

[ORAL] JUDGMENT OF WYLIE J

Distribution:

J Hunter: [email protected]
DAT Hollings QC: [email protected]

LM Nicholson: [email protected]

A K R V S P & Anor HC AK CIV 2011-404-002998 7 December 2011

[1]      The applicant, Ms R, seeks leave to appeal against my reserved judgment issued on 10 October 2011.

[2]      In that judgment, I dealt with an appeal by the applicant against a decision of Judge de Jong delivered in the Family Court at Auckland on 27 April 2011.  I noted that the appeal raised two issues.   First, was Ms R entitled to apply for relief in New Zealand under s  182  of the Family Proceedings Act  1980  when  the order dissolving the parties’ marriage was made in Fiji, and secondly, was Fiji the forum conveniens for determining relationship property and trust issues between the parties. I held that no order had been made under Part 4 of the Act and that as a result, the Family Court did not have jurisdiction to consider Ms R’s application under s 182(1) of the Act.   I allowed the cross-appeal.   I did not find it necessary to go on and consider whether or not Fiji is the appropriate forum for the proceedings.

Submissions

[3]      Ms Hunter on Ms R’s behalf submitted that the issue turns on the appropriate interpretation of the opening words in s 182(1) of the Act.  She submitted that the focus should be on the incidence of an order being made, rather than which Court made it.  In that regard, she relied on the purpose of s 182, discussed by the Supreme Court in Ward v Ward.[1]    She submitted that the prospective appeal does raise questions of law capable of bona fide and serious argument.  Further, she argued that the  prospective  appeal  raises  interests  both  of  a  public  and  private  nature  of sufficient importance to outweigh the cost and delay of a further appeal.   In that

regard, she referred to the difficulties Ms R may face if she obtains an order in relation to trust property in Fiji.  She notes that the trustees are in New Zealand and that trust assets are in this country.  She pointed to potential enforcement difficulties Ms R may face and to difficulties that may arise for the trustees if they simply defer to an order made in the Fijian Court which potentially could involve a breach of trust.  Ms Hunter also pointed to the increasing number of trusts in this country, and to our increasingly mobile society and submitted that the issue is one of potential

public importance because the issues could well arise again in the future.

[1] Ward v Ward [2010] 2 NZLR 31.

[4]      Ms Hollings QC for Mr P referred me to the well-known tests articulated in the decision of the Court of Appeal in Waller v Hider.[2]     She submitted that my decision involved a simple question of statutory interpretation and that there is no error of law capable of bona fide and serious argument.  She also argued that there is no realistic prospect of benefit to the applicant from a second appeal.  In this regard, she submitted that the applicant is unlikely to succeed on the forum conveniens issue

even  in  the  event  that  I  erred  in  regard  to  my  interpretation  of  the  statute. Ms Hollings  also  argued  that  there  are  insufficient  matters  of  private  or  public importance to justify the delay and costs of a further appeal.   In this regard, she emphasised that the proceedings in Fiji have been allocated a substantive fixture, due to commence on 9 July 2012.  She noted that Ms R consented to that fixture being put in place.

Analysis

[2] Waller v Hider [1998] 1 NZLR 412 at 413.

[5]      Section 67 of the Judicature Act 2008 allows appeals to the Court of Appeal with leave.  An appeal is only justified where it raises some question of law or fact capable of bona fide and serious argument.   Further, the case must involve some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.[3]

[3] Waller v Hider [1998] 1 NZLR 412; Snee v Snee (1999) 3 PRNZ 609 (CA).

[6]      Here, I am satisfied that the grant of leave is appropriate.  I have reached that conclusion for the following reasons:

(a)      The point was novel.  Insofar as I am aware it has not been dealt with in any other case in New Zealand;

(b)The  Family  Court  Judge  and  I  differed  as  to  the  appropriate interpretation of s 182.  The Family Court Judge adopted a purposive approach by reference to the decision of the Supreme Court in Ward v Ward.    I  acknowledged  that  I was  required  to  adopt  a  purposive

approach in interpreting s 182, but considered that my primary task

was to interpret the text of the statutory provision.   In my view, the differing approaches to the interpretation of the section do raise a question of law capable of bona fide argument;

(c)      The case does involve issues of private importance to the parties.  The trustees and the trust assets are in this country.   Even if orders are made in the course of the Fijian proceedings, it is possible that Ms R could  have  difficulties  enforcing  those  orders  in  New Zealand. Further, difficulties could be created for the trustees;

(d)The case also potentially raises issues of public importance.   Both counsel accept that there are an increasing number of trusts in this country and  that there  are more people with property in different jurisdictions.   Further, it was common ground that we live in an increasingly mobile society.  It is likely that the issue will arise again in the future.

[7]      In my view, it is appropriate that the Court of Appeal should be asked to deal with the matter.  The issue for the Court of Appeal is whether or not Ms R is entitled to apply for relief in New Zealand under s 182 of the Family Proceedings Act 1980 when the order dissolving the parties’ marriage was made in Fiji.

[8]      It is appropriate to apply conditions on the grant of leave to ensure that the matter is progressed speedily:

(a)       costs  in  relation  to  the  hearing  before  me  have  not  been  settled.

Ms Hollings had filed a memorandum in relation to those costs.  The memorandum calculated costs on a 2B basis in the sum of $4,512. Ms Hunter did not resist that calculation.  I fix costs in that sum.  The costs are to be paid forthwith;

(b)the notice of appeal to the Court of Appeal is to be filed within five working days of the date of this judgment;

(c)       the appellant is to use her best endeavours to ensure that the appeal is progressed as quickly as is reasonably practicable.

[9]      Costs in relation to this application are reserved.  They can be dealt with in the context of the appeal hearing.

Wylie J