Alloway v Bond - [2016] NZHC 2744

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002831 [2016] NZHC 2744

BETWEEN
ROBERT MATTHEW ALLOWAY

Appellant

AND

JANE BOND Respondent

Hearing: 8 November 2016

Appearances:

J Hosking for the Appellant
V Crawshaw for the Respondent

Judgment:

16 November 2016

JUDGMENT OF HINTON J

This judgment was delivered by me on 16 November 2016 at 2.l5 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………
Registrar/Deputy Registrar

Counsel/Solicitors:
Anderson Creagh Lai, Auckland
J Hosking, Barrister, Auckland
V Crawshaw, Barrister, Auckland

ROBERT MATTHEW ALLOWAY v JANE BOND [2016] NZHC 2744 [16 November 2016]

[1] The issue here is whether further evidence of Mr Alloway’s financial position, including financial statements of a number of entities, should be allowed to be adduced on his maintenance appeal.

A brief background

[2] The parties were in a de facto relationship of three to three-and-a-half years, ending in February 2013. They had two children during that time, a daughter born in May 2010 and a son born in November 2012.

[3] By a decision of Judge Burns dated 28 October 2015, Mr Alloway was ordered to pay maintenance to Ms Bond in the sum of $6,500 per month, until November 2018.

[4] Mr Alloway has appealed Judge Burns’ decision. He raises six grounds of appeal. His counsel, Ms Hosking, says the relevant grounds of appeal for present purposes, are: that the Judge failed to take into account income, accommodation and capital gains available to Ms Bond through her trust; he placed weight on the shared lifestyle of the parties when that lifestyle was no longer available to Mr Alloway, having been made redundant; and he erred as to Mr Alloway’s means, in particular after his significant change in employment and the reputational damage arising out of the fall-out from Allied Farmers Ltd/Hanover Finance.

[5] Mr Alloway has filed three affidavits that are in issue: his own affidavit dated 5 September 2016; an affidavit of Mr Houghton, chartered accountant dated
6 September 2016, and a further affidavit by Mr Alloway dated 17 October 2016 (the three affidavits). The last of these affidavits was largely in reply to an affidavit filed by Ms Bond, in support of her opposition to adducing further evidence.

[6] Ms Crawshaw, for Ms Bond, accepts that evidence which is broadly of an updating nature can be adduced, including updating evidence as to any third-party employment, or attempts to obtain such. I went through the three affidavits with her to be clear as to what was agreed. Taking a reasonably liberal approach, the end result is that the contents of paragraphs 6, 10-14, 20-23, 24 (from “I am having interviews …”) and 25, of Mr Alloway’s affidavit dated 5 September 2016, can all be

adduced without opposition. Paragraphs 12-15 of Mr Alloway’s affidavit dated

17 October 2016 can also be adduced without opposition.

[7] The balance of Mr Alloway’s two affidavits, and the entirety of Mr Houghton’s affidavit are in contention. That evidence relates primarily to Mr Alloway’s financial position. In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alloway v Bond

Details

AGLC: Alloway v Bond [2016] NZHC 2744
Case: [2016] NZHC 2744
Decision Date: 16 November 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Alloway v Bond involved a maintenance appeal by Robert Matthew Alloway against Jane Bond, who had been awarded maintenance by Judge Burns. Alloway sought to present additional financial evidence to support his appeal, specifically affidavits detailing his financial position and that of associated entities. The primary legal issue was whether special reasons existed to allow the introduction of this additional evidence on appeal, given that it could not be considered fresh and had not been provided at the initial hearing.

The court examined the test for granting leave to adduce further evidence under Rule 20.16 of the High Court Rules. The evidence must be fresh, cogent, and likely to be material, with a particular focus on whether it relates to matters arising after the decision appealed against. The court noted that Alloway had previously declined to provide full financial information, which Judge Burns had used to question Alloway's credibility and reliability. The court found that the evidence in question was not fresh as it could have been produced with reasonable diligence and that allowing it would likely result in a retrial, undermining due process.

Given these findings, the court concluded that there were no special reasons to admit the contested financial evidence. The court allowed Alloway to present uncontested updating evidence, including evidence on the value of properties belonging to Bond. The court ordered the contested affidavits to be removed from the file and set deadlines for filing permitted evidence and costs. The final orders mandated that Alloway pay costs to Bond within a specified timeframe.

Orders