Andrew John Caplen Beavis v Elizabeth De Vere and Cir

[2013] NZSC 90

IN THE SUPREME COURT OF NEW ZEALAND

SC 43/2013
[2013] NZSC 90

BETWEEN

ANDREW JOHN CAPLEN BEAVIS
Applicant

AND

ELIZABETH JOY DE VERE
First Respondent

COMMISSIONER OF INLAND REVENUE
Second Respondent

Court:	McGrath, William Young and Glazebrook JJ
Counsel:	A H Waalkens QC for Applicant A M Manuel for First Respondent R L Roff for Second Respondent
Judgment:	20 September 2013

JUDGMENT OF THE COURT

The application for recall is dismissed.

____________________________________________________________________

REASONS

1. Mr Beavis applies for an order recalling this Court’s judgment of 19 August 2013[1] dismissing his application for leave to appeal against the judgment of the Court of Appeal concerning his liability to Ms de Vere under the Child Support Act 1991.[2]

   [1]Beavis v de Vere [2013] NZSC 79.

   [2]EJD v AJCB [2013] NZCA 100, [2013] NZFLR 325.

2. Mr Beavis’ application is on the basis that one of the primary reasons for this Court dismissing his application for leave was the allegedly mistaken belief that Mr Beavis had accepted in the Family Court that there was jurisdiction to make retrospective departure orders pursuant to the Child Support Act. [3]

   [3]The Family Court noted in its judgment that Mr Beavis accepted that the Court had jurisdiction to make retrospective orders but submitted that a retrospective order should not be made in this case: EJD v AJCB FC Auckland, FAM 2004-004-2183, 14 April 2010 at [27]–[28].

3. While this alleged concession was mentioned by this Court in its leave decision,[4] the basis for declining leave on the retrospectivity issue was that it would be unfair to Ms de Vere to allow an argument on retrospectivity in this Court when Mr Beavis had chosen not to cross-appeal on that point in the Court of Appeal.[5]

   [4]At [6].

   [5]At [7].

4. This was despite the Court of Appeal in a footnote in its leave judgment[6]  noting there was no cross-appeal on the grounds of retrospectivity by Mr Beavis and indicating that the Commissioner of Inland Revenue, having been successful in the retrospectivity point in the High Court,[7] was unable to appeal on that issue.

   [6]Darby v Bolton [2011] NZCA 474, [2011] NZFLR 1065 at fn 8.

   [7]In the High Court, Fogarty J held that the Court did have jurisdiction to make retrospective orders: B v X [Child support] [2011] NZFLR 481 (HC) at [33].

5. We dismiss the application for recall of our judgment.

Solicitors:
Law Works, Auckland for Applicant
Wynyard Wood, Auckland for First Respondent
Crown Law Office, Wellington for Second Respondent