Alloway v Bond
[2015] NZHC 1113
•22 May 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-002061 [2015] NZHC 1113
UNDER the Domestic Actions Act 1975 BETWEEN
ROBERT MATTHEW ALLOWAY First Plaintiff
AND
ROBERT MATTHEW ALLOWAY AS TRUSTEE OF THE KAKARAMEA PROPERTY TRUST
Second Plaintiff
AND
JANE BOND Defendant
Hearing: 19 May 2015 Appearances:
Plaintiff appearing in person
M Macnab for DefendantJudgment:
22 May 2015
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 22 May 2015 at 3:15 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
ALLOWAY v BOND [2015] NZHC 1113 [22 May 2015]
Background
[1] The plaintiff, Robert Alloway, and the defendant, Jane Bond, met in early September 2009 and very soon agreed they would marry. In mid-October 2009, Mr Alloway gave Ms Bond an engagement ring which he says was worth around
$45,000. Mr Alloway and Ms Bond lived together for a time and they had two children: a daughter born in May 2010, and a son born in November 2012. During their time together, Mr Alloway gave Ms Bond other chattels, including wrist watches and other personal items; he says some of them were gifts and some were on loan, in contemplation of the marriage.
[2] The relationship fell apart. The couple are now engaged in litigation in this Court and the Family Court over property and Mr Alloway’s obligations to provide financial assistance for the upbringing of his children.
The plaintiffs’ claims
[3] In this proceeding, Mr Alloway claims the return of various items of property and damages under the Domestic Actions Act 1975 (“the Domestic Actions claim”). He has also sued Ms Bond in tort, alleging conversion of some of the property which is the subject of the Domestic Actions claim and trespass. In the conversion claim, Mr Alloway seeks the return of the subject property or an order for compensation; in the trespass claim he seeks damages of an unspecified (but likely to be very modest) amount.
[4] As second plaintiff, Mr Alloway sues as the trustee of a family trust which alleges that on an occasion between 2 April 2013 and 7 April 2013 when Ms Bond was allegedly trespassing at a residential property, she caused damage to “the schist around the front door” of the house. Damages of an unspecified amount are sought but it is unlikely the sum will be substantial.
[5] The value of the property which is the subject of the Domestic Actions claim is alleged to be $120,900.07 and the damages sought are $48,430.13.
Procedural history
[6] The proceeding in this Court was commenced by a statement of claim filed on 13 April 2013. Since then, Ms Bond has issued proceedings in the Family Court for spousal maintenance and for orders pursuant to the Property (Relationships) Act
1976 (“the PRA”).
[7] The proceedings in this Court and in the Family Court have been the subject of a number of interlocutory decisions. I do not ascribe blame or responsibility to either of the protagonists, but it is clear that there has been much tactical manoeuvring and that, after more than two years of litigation, the parties’ respective claims remain some distance from resolution. There has evidently been an issue about discovery in the Family Court. Judge Burns observed in a reserved judgment
dealing with discovery and other procedural issues dated 18 September 2014,1 that a
discovery order against Mr Alloway had been made and that it needed to be complied with. I was told from the Bar, and Mr Alloway did not dispute, that on
30 April 2015, Judge Burns made an order prohibiting Mr Alloway from filing any applications in the Family Court proceedings until he had complied with his disclosure obligations.
[8] On 16 March 2015, Wylie J refused an application by Ms Bond to strike out the proceeding in this Court.2 The Judge held that he could not find that the cause of action based on s 8(1) of the Domestic Actions Act was clearly untenable. He held also that the other causes of action alleging conversion, trespass and negligence were not matters which should be struck out. Wylie J observed, however, that the parallel proceedings in this Court and the Family Court were unfortunate and that there was a
risk of contradictory findings. The Judge noted the possibility of a transfer of the Domestic Actions claim to the Family Court which has a concurrent jurisdiction to hear it. Alternatively, the Judge thought it might be preferable for this Court to deal with the Domestic Actions claim first because the outcome would affect the scope of the relationship property proceedings. Because those issues had not been canvassed
in the matter then before the Court, however, the Judge took them no further.
1 Alloway v Bond [2014] NZFC 10399.
2 Alloway v Bond [2015] NZHC 487.
The present application
[9] Ms Bond applied subsequently for an order transferring this proceeding to the Family Court. She also seeks an order, in the event that the proceedings are retained in this Court, for security for costs.
[10] Mr Alloway has applied to this Court for a freezing order preventing
Ms Bond from:
(a) disposing of or charging any of the property claimed by him in the proceeding;
(b) transferring any of the property claimed to a third party; and
(c) destroying or damaging any of the property claimed.
He also seeks an order requiring Ms Bond to “post a bond to the Court in the sum of
$47,000 as surety for the disposal of property to date.”
[11] It is said by counsel for Ms Bond that the Kakaramaea Property Trust (of which Mr Alloway is a trustee and in which capacity he has brought the claims in tort) has been wound up. The allegation has not formally been denied by Mr Alloway.
The nature of the parties’ relationship
[12] The dispute between Mr Alloway and Ms Bond is wide-ranging and vigorous. Central to the positions taken by the parties is a dispute about the nature of their relationship from time to time between the heady engagement in early September 2009 and the demise of the relationship sometime in 2012 or 2013; they disagree also about when it was, and in what circumstances, the relationship changed character. There are questions about:
(a) whether there was an agreement to marry which subsisted from early
September 2009 until the parties separated sometime later;
(b) when the parties entered into a de facto relationship; (c) the duration of such de facto relationship;
(d)the nature of the arrangements between the parties over property, including access to and the use of property acquired by the parties prior to and during the relationship;
(e) the circumstances in which the de facto relationship came to an end;
and
(f) the actions of the parties subsequently.
The determination of those issues will affect the nature of the orders available to the
Family Court under the PRA.
[13] Mr Alloway confirmed, after I had taken him through his statement of claim, that the following property is the subject of the proceeding in this Court and the current application for a freezing order:
(a) the diamond solitaire engagement ring which the parties agree has been sold by Ms Bond;
(b) a Corum Jolly Roger Limited Edition wrist watch; (c) a ladies’ Rolex Oyster Perpetual wrist watch;
(d) an iPhone 4S cell phone;
(e) a pair of 0.5 carat diamond earrings;
(f) furniture and chattels valued at approximately $55,000, previously situated in a Torbay property formerly occupied by the parties; and
(g)an iPad, a Louis Vuitton handbag and a Lulu Guinness clutch purse which Mr Alloway gave to Ms Bond as gifts.
[14] Mr Alloway acknowledged that the listed property is also the subject of the relationship property proceedings.
The jurisdiction of the Family Court and of the High Court
[15] The Family Court has jurisdiction to hear claims under the Domestic Actions Act and, given the value of the property in dispute and the relatively straightforward nature of the issues, it might have been expected that the Domestic Actions claim would be issued in that Court. The jurisdictional position is complicated, however, by the concurrent claims in tort which fall outside the jurisdiction of the Family Court. Given the amounts at issue in those proceedings they might have been
expected to have been made in the District Court3 or even before a Disputes
Tribunal.4
[16] Issuing the Domestic Actions claim in the Family Court and the tort claims in either the District Court or the Disputes Tribunal, however, would have involved inconvenient duplication and, as Wylie J observed in the strike out judgment, the risk of overlapping factual issues and contradictory findings by different decision- makers. The High Court, however, has jurisdiction to determine both the Domestic Actions claim and the tort claims, so Mr Alloway’s legal advisers may have considered it appropriate to issue proceedings in this Court to avoid the pitfalls of duplication and conflicting decisions. Nevertheless, the issues which arise in the proceeding in this Court overlap substantially, if not wholly, with the issues that the Family Court is required to deal with in the relationship property proceedings commenced subsequently by Ms Bond.
Should the proceedings be transferred to the Family Court?
[17] Both parties have recognised that, so far as possible, one court should hear all related matters in dispute. Should this Court, with its broad jurisdiction over both
common law claims and statute-based claims, determine all of the claims other than the relationship property proceedings or, given the amounts in issue and the Family Court’s specialist jurisdiction, should the proceedings be dealt with in the courts below?
[18] Ms Macnab acknowledged in the course of argument that this Court could not transfer the claims in tort to the Family Court; it has no jurisdiction to hear them.5
Counsel sought leave, therefore, to amend Ms Bond’s application for transfer to seek a direction that the Domestic Actions claim be transferred to the Family Court and an order pursuant to s 46(1) of the District Courts Act 1947 that the causes of action in tort be transferred to the District Court. Mr Alloway opposed the amendment on the ground that such orders would perpetuate undesirable duplication.
[19] Section 9 of the Domestic Actions Act specifically gives contemporaneous jurisdiction to both the Family and High Courts to resolve property disputes arising out of agreements to marry. This section also allows the transfer of proceedings from the Family Court to the High Court, but there is no express provision in the Domestic Actions Act for the transfer of proceedings from the High Court to the Family Court.
[20] I am satisfied, however, that the Court is not prevented from transferring the proceedings as requested by Ms Bond. Section 46(2) of the District Courts Act allows the transfer of High Court proceedings to the District Court unless the Court considers some important question of law or fact is likely to arise in the proceedings. Section 16 of the Family Courts Act 1980 provides that the “the District Courts Act
1947 shall apply, with any necessary modifications, to Family Courts and Family Court Judges in the same manner and to the same extent as it applies to District Courts and District Court Judges”. The exception is where the District Courts Act conflicts with the Family Courts Act, which is not the case in this instance.
[21] In a case not involving an important question of law or fact, the primary reasons for a transfer of proceedings to the Family Court are that court’s expertise6
and the lack of procedural restrictions that allow information relevant to the dispute to be obtained more effectively, efficiently, cheaply and quickly than in the High Court.7
[22] The principal claims and counterclaims between the parties are encompassed by the relationship property proceedings and the Domestic Actions claim. They are within the jurisdiction of the Family Court. No important questions of law or fact have been identified as being likely to arise in this case. The Family Court is particularly suited to determining the factual questions concerning the nature of the parties’ relationship, from time to time, and the dates on which it was formed, transformed, and ended. I am satisfied, therefore, that the Family Court is the better forum for addressing those matters in the first instance. It is within the power of that Court to direct that, even if the relationship property proceedings are not consolidated with the Domestic Actions claim, they shall be heard together by the
same judge at the same time.8
[23] The claims in tort are plainly important to Mr Alloway but, as I have indicated, they are within the jurisdiction of the District Court and, arguably, a Disputes Tribunal. They are certainly not matters which should occupy the time and resources of this Court. If jurisdictional constraints require that the issues, though related, must be dealt with in different courts, it is better that the Family Court and the District Court should hear them.
Mr Alloway’s proposed application to the Family Court to transfer the PRA
proceedings to this Court
[24] Mr Alloway told me during the hearing that he has prepared an application to the Family Court to transfer the relationship property proceedings to this Court.
[25] Section 22(1) of the PRA provides “Every application under this Act must be heard and determined in a Family Court.” Section 38A(1) states, nevertheless, that a “Family Court Judge may order the transfer of proceedings to the High Court if the Judge is satisfied that the High Court is the more appropriate venue for dealing with
the proceedings”. In considering whether to make such an order, the Judge must have regard to the complexity of the proceedings or of any question in issue in the proceedings, any proceedings before the High Court that are between the same parties and that involve related issues and any other matter that the Judge considers relevant in the circumstances.9 Section 38A came into force in 2014 and, so far as I am aware, it has not yet been considered in a judicial decision of the High Court.
[26] Mr Alloway did not develop the grounds for the proposed transfer application in the context of the statutory provisions, but he made a general reference to the complexity of the relationship property proceedings because of the existence and alleged relevance of a number of trusts and companies, some of them registered overseas. Even if the test for transfer has been broadened since the enactment of s 38A, the central question remains whether the High Court it is a more appropriate
venue than the specialist Family Court.10 It would not be appropriate for me to pre-
empt a decision of a Family Court about an application which is not yet before that court, let alone this. For present purposes, it is sufficient to say that an order for transfer of the relationship property proceedings to this Court is no means inevitable. I am not persuaded that Mr Alloway’s intention to seek a transfer should result in the present applications being deferred.
Defendant entitled to orders for transfer
[27] I am satisfied, therefore, that Ms Bond should have leave to amend her transfer application and that the proceedings in this Court should be transferred to the Family Court and the District Court respectively. Orders will be made accordingly.
The plaintiff ’s applications for freezing orders and security for costs
[28] Transferring this proceeding to the Family Court and the District Court effectively disposes of Mr Alloway’s application for freezing orders and security for costs. In any event, as he acknowledged, the property in respect of which he seeks
freezing orders is property which is the subject of the relationship property proceedings. Section 45 of the PRA provides for the preservation of property which is the subject of proceedings pending under the Act. There is no doubt that Ms Bond is not only aware of the proceedings which she initiated herself but also of the provisions of that section. Moreover, the Family Court has jurisdiction to restrain dispositions of any property in order to defeat a claim or the rights of a party to proceedings under the PRA and may set aside any disposition made for that
purpose.11 I am satisfied that adequate protections exist in the legislation and, even
if Mr Alloway’s proceedings had been retained in this Court I would not have made the orders he seeks. Questions as to security for costs will be matters for the Family Court and the District Court respectively.
Orders
[29] For the reasons given, I make the following orders:
(a) The defendant has leave to amend her transfer application to seek orders that the Domestic Actions claim be transferred to the Family Court and that the causes of action in tort be transferred to the District Court.
(b)This proceeding, so far as it relates to the first cause of action (under the Domestic Actions Act 1975) set out in the statement of claim dated 19 April 2013 shall be transferred to the Family Court for hearing and determination.
(c) This proceeding, so far as it relates to the second, third and fourth causes of action (in tort) set out in the statement of claim dated
19 April 2013, shall be transferred to the District Court for hearing and determination.
(d)I dismiss the plaintiff’s applications for freezing orders and security for costs, and the defendant’s application for security for costs.
11 Property (Relationships) Act 1976, ss 43 and 44.
Costs
[30] Ms Bond has succeeded in her application for transfer and Mr Alloway has failed in his application for freezing orders and security for costs. On the face of it, therefore, Ms Bond is entitled to costs.
[31] Any application for costs shall be made by way of memorandum filed and served no later than Friday, 12 June 2015. Any memorandum in response shall be filed and served no later than Friday, 3 July 2015. Costs will then be dealt with on the papers unless the Court directs otherwise.
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Toogood J
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