Barker v Barker
[2025] NZHC 1817
•4 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-000695
[2025] NZHC 1817
BETWEEN RYAN BARKER
Appellant
AND
ALICE BARKER
Respondent
Hearing: 5 June 2025 Appearances:
V Crawshaw KC and S Wilson for the Appellant
JWA Johnson (VMR), A G Needham and A Brown (VMR) for the Respondent
Judgment:
4 July 2025
JUDGMENT OF HARVEY J
This judgment is delivered by me on 4 July 2025 at 10AM pursuant to r 11.5 of the High Court Rules
………………………………
Deputy Registrar
Solicitors:
Treadwell Gordon, Whanganui (A Brown)
Counsel:
Vivienne Crawshaw KC, Auckland JWA Johnson, Barrister, Auckland A G Needham, Barrister, Auckland
BARKER v BARKER [2025] NZHC 1817 [4 July 2025]
Introduction1
[1] On 3 March 2025, the Family Court held that Ryan Barker’s 3.5 million ordinary shares in [Company] are relationship property and ordered the immediate transfer of half of those shares to his former wife, Alice Barker.2 Mr Barker’s appeal of that decision to this Court will be heard on 1 October 2025. The appellant will submit that the Family Court Judge erred in law by:
(a)failing to consider provisions of [Company’s] constitution which restrict or prohibit the transfer of shares;
(b)failing to take into account the fact that the share transfer would place the appellant in breach of his duty to act in [Company’s] best interests;
(c)holding that the share transfer would achieve a just division of relationship property under the Property (Relationships) Act 1976 (PRA) and, in doing so, failing to properly consider:
(i) the prejudice to the appellant and [Company] arising from a 12.85 per cent shareholding being transferred to a third party with no ties to the business, no relevant expertise and whose commercial intent is not aligned with that of [Company] nor the existing shareholders; and
(ii) how a just division of relationship property could be achieved in a manner which protects the appellant’s future interest in [Company];
(d)failing to craft orders which would minimise conflict in the distribution of relationship property and avoid unnecessary harm to the appellant’s future interest in [Company]; and
(e)failing to take account of the appellant’s post-separation contributions (both past and future) to the value of his shareholding in [Company].
1 Pseudonyms are used for the parties in this judgment.
2 [Barker] v [Barker] [2025] NZFC 1815 [Decision under appeal].
The strike-out application
[2] The respondent has applied to strike out the appeal claiming that it does not disclose any reasonably arguable grounds and that it is frivolous, vexatious and an abuse of process. Mr Johnson submitted that the respondent is entitled to finality of litigation but that the appellant is attempting to relitigate issues already settled by the Family Court. Counsel contended that allowing the appeal to proceed would be contrary to the purposes and principles of the PRA, including the just, inexpensive, simple and speedy resolution of relationship property disputes.3
[3] The appellant opposes the strike-out application. Ms Crawshaw KC argued the application seeks to pre-emptively determine matters that will properly be before the Court at the appeal hearing. In addition, the application is meritless and will result in unnecessary cost and use of the Court’s time. Its grounds are wide-ranging and require engagement with both the merits of the appeal and the circumstances leading to its filing. Such arguments are not the proper subject of a strike-out application and in any event the high threshold for strike-out has not been met. Counsel submitted that the application seeks to bar the appellant from legitimately testing the workability and fairness of the orders made by the Family Court.
[4] A number of interlocutory applications have been filed. However, all but two are to be determined at the substantive hearing.4 This judgment need only determine the respondent’s application to strike out the appeal and, if that application is declined, the respondent’s application for leave to cross-appeal out of time.
Legal principles
[5] The principles for strike-out applications that allege there is no reasonably arguable cause of action or defence were summarised in Attorney-General v Prince and endorsed by the Supreme Court in Couch v Attorney-General.5 They are:
(a)Pleaded facts, whether or not admitted, are assumed to be true.
3 Property (Relationships) Act 1976, s 1N(d).
4 [Barker] v [Barker] HC Auckland CIV-2025-404-695, 3 June 2025 (Minute of Gault J).
5 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33], citing
Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
(b)The causes of action must be clearly untenable.
(c)The jurisdiction to strike out is one exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material.
(d)The fact that applications to strike out raise difficult questions of law and require extensive argument does not exclude jurisdiction.
[6] More recently, in Smith v Fonterra Co-operative Group Ltd the Supreme Court reiterated that real caution is necessary before pre-emptively disposing of a claim where seriously arguable non-trivial harm is in issue.6
[7] Turning to the other grounds of the strike-out application, a frivolous proceeding trifles with court processes and lacks “the seriousness required of matters for the Court’s determination”.7 Whereas a vexatious proceeding contains an element of impropriety.8 Finally, an abuse of process can occur when proceedings attempt to relitigate matters already determined; for example, by bringing substantively the same proceeding “in a different garb”.9
The nature of the appeal
[8] Before turning to address the strike-out application proper, it is necessary to consider the nature of the proposed appeal. The parties disagree about whether an appeal against orders made under s 25 of the PRA is a general appeal or an appeal from the exercise of a discretion.
[9] Mr Johnson submitted that the Judge’s decision to make orders under s 25 is the exercise of a discretion.10 Therefore, the appellant must show the Judge erred in law or principle, took account of irrelevant considerations, failed to take account of
6 Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134 at [172].
7 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89]; and Deliu v Hong [2011] NZAR 681 (HC) at [22].
8 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 7, at [89].
9 Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at 586; Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541; and Little v New Zealand Law Society [2023] NZHC 1880.
10 Cahill v Goulter [2017] NZHC 1505 at [80]; and BJB v PB [2012] NZHC 1951, [2012] NZFLR 1951 at [18].
relevant considerations, or that the decision was plainly wrong.11 Counsel contended this increases the threshold for the proposed appeal and, accordingly, supports the respondent’s argument that the appeal is clearly untenable.
[10] However, I consider it is reasonably arguable that the making of a s 25 order is not an exercise of discretion. The case law has seemingly not yet adopted a uniform approach to this issue. On the one hand, Gilbert J in BJB v PB held that an appeal of a decision not to make an interim distribution under s 25(3) of the PRA was an appeal from the exercise of a discretion.12 However, in that case the approach to be taken on appeal was not disputed, and so the Court was not provided with complete arguments on the matter.
[11] In Cahill v Goulter, Churchman J described s 25 as “discretionary” but cited Austin Nicholls as the relevant approach on appeal.13 Moreover, it appears Churchman J adopted the approach set out by Heath J in B v F, from which he quoted the following passage:14
[6] Relationship property appeals from the Family Court are governed by s 39 of the Act, which imports ss 74–78 of the District Courts Act 1947 as part of the procedures on appeal. The appeal is by way of rehearing (s 75) and falls within the scope of an appeal of the type to which the Chief Justice referred in Austin, Nichols at para [17]. If the appeal were allowed, this Court may make any decision that it thinks should have been made or remit the proceeding to the Family Court for reconsideration on a basis to be articulated clearly in its decision (s 76(1)).
[7] Application of the Austin, Nichols principles is not altogether easy, in the context of appeals from the Family Court. Many first-instance decisions represent a mix of findings of fact (after seeing and hearing witnesses), the formation of an evaluative judgment and the exercise of statutory discretions. Sometimes it is difficult to characterise a particular decision as evaluative, factual or discretionary in nature.
[8]I approach this appeal on the following basis:
(a) first, I must take account of the advantage that Judge Twaddle had of hearing and seeing the witnesses give evidence before him (see Austin, Nichols at para [13]);
11 K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [32], citing May v May (1982) 1 NZFLR 165 (CA)
at 170.
12 BJB v PB, above n 10, at [18].
13 Cahill v Goulter, above n 10, at [80] and fn 18, citing Austin Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
14 Cahill v Goulter, above n 10, at [81], citing B v F [2010] NZFLR 67 (HC).
(b) secondly, to the extent that the Judge exercised any discretion in reaching his decision, I must determine whether those discretionary decisions were or were not open to him, based on May v May [1982] 1 NZFLR 165 (CA) and Blackstone v Blackstone [2008] NZCA 312 at para [8];
(c) otherwise, I am free to reconsider the Family Court’s decision and to substitute my own view on questions of fact and evaluation, if I were convinced that the first instance decision was wrong.
In that regard, I align myself with Randerson J’s remarks in WPH v ITP [Length of relationship] [2009] NZFLR 745 at paras [15]–[17].
[12] I also accept Ms Crawshaw’s submission that an analogy could potentially be made with the finding of the Court of Appeal in Goldstone v Goldstone as Administrator of the Estate of Goldstone, which found that the “fairness” test in s 119 of the Insolvency Act 2006 constituted a threshold to be met before the discretion to make vesting orders could be exercised.15 It seems reasonably arguable that the concept of “justness” within s 25 of the PRA could likewise allow for the objective assessment of competing interests and that Parliament may not have intended to allow the vesting of property under that section to be made on a discretionary basis.
[13] Then in Ansin v Ramage, which concerned an appeal of interim sale orders under s 25(4) of the PRA, Woolford J held that there is no simple test of universal application to determine whether the making of a sale order is the exercise of discretion or a matter of judgment.16 I agree. As highlighted in Goldstone, there are various indicia the Court must consider when determining the nature of an appeal.17 Some weigh in favour of the respondent, such as the degree of “personal appreciation” connoted by the phrasing “the court may make any order it considers just”.18 Some weigh in favour of the appellant, such as the non-procedural nature of the orders, and its engagement with wider issues of principle involving the application of law to the facts.19 Therefore, I consider it is at least reasonably arguable that the proposed appeal is not one from an exercise of discretion. This point will ultimately need to be determined at the substantive appeal.
15 Goldstone v Goldstone as Administrator of the Estate of Goldstone [2021] NZCA 664, [2021] NZFLR 883 at [11]–[13].
16 Ansin v Ramage [2023] NZHC 1989, [2023] NZFLR 742 at [12].
17 Goldstone, above n 15, at [7]–[13].
18 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308 at [49]; and the Property (Relationships) Act 1976, s 25(1).
19 Taipeti, above n 18, at [49].
[14] Therefore, I do not accept the respondent’s submission that I must assess the feasibility of the appellant’s grounds of appeal on the basis they must satisfy the threshold for an appeal from the exercise of a discretion. I now turn to consider the respondent’s claim that there are no reasonably arguable grounds of appeal.
Are there reasonably arguable grounds of appeal?
The Family Court judge erred in law by failing to consider provisions of [Company’s] constitution which restrict or prohibit the transfer of shares
[15] The Judge considered the restrictions in [Company’s] shareholder agreement in some detail.20 However, his Honour’s decision did not refer to [Company’s] constitution nor the restrictions therein. This is not in dispute.
[16] The appellant will argue on appeal that the restrictions in the constitution essentially make the Court orders unworkable because the constitution requires him to first offer the shares to existing shareholders and because it enables [Company’s] board to “veto” the transfer if they consider that it is not in the company’s best interests.
[17] Mr Johnson challenged this submission, noting that s 86 of the Companies Act 1993 expressly provides that shares may pass by operation of law notwithstanding a company’s constitution. I accept that shares likely pass by operation of law pursuant to a vesting order made under s 25 of the PRA.21 However, even though I am satisfied of this point with sufficient certainty to meet the threshold for strike-out, this does not entirely defeat the ground of appeal, as discussed below.
[18] Although Ms Crawshaw maintained that a vesting order would trigger the constitution’s provisions, she also submitted that, even if this were not the case, Mr Johnson’s argument fails to address the appropriateness and fairness of the Court orders. The provisions in the constitution clearly aim to protect [Company] from the
20 Decision under appeal, above n 1, at [114]–[119].
21 Vey Group Ltd v Vance [2020] NZCA 232, [2021] 2 NZLR 541 at [24]. See also Māori Trustee v Smith-Waipaoa 5A2 (2017) 72 Tairāwhiti MB 57 (72 TRW 57) at [58]. I also note the respondent’s argument that the pre-emptive provisions in the constitution would not be triggered by the vesting orders by way of analogy with Ord v Calan Healthcare Properties Ltd [2005] 2 NZLR 96 (CA) at [36]–[37].
transfer of shares to an uninterested party outside of a closed group, which is exactly what the Court orders have done. Accordingly, Ms Crawshaw contended the restrictions in the constitution — and the rationales behind them — are relevant to whether a vesting order was a just outcome under the PRA and, therefore, should have been taken into account by the Judge.
[19] Mr Johnson replied that while the restrictions in the constitution were not referred to in the decision, the Judge did consider them because the restrictions were raised in submissions and discussed during the hearing. He also emphasised that the Judge imposed conditions on the share transfer, and provided leave to apply for ancillary orders, to ensure the transfer would not interfere with [Company’s] operations.22
Discussion
[20] I do not consider this ground of appeal to be clearly untenable. Although the constitution and the restrictions therein were raised during the proceedings, it is not clear that they were taken into account in the decision itself. For example, after discussing the shareholder agreement the Judge stated at [119] that he was “not aware of any other restrictions or wider agreements binding the [Company’s] shareholders that may restrict the transfer of shares”. This suggests that, although the constitution was raised during the proceedings, the Judge may not have turned his mind to it when making his decision. In which case, it is arguable that his Honour may have failed to take account of a relevant consideration.
[21] The strength of this ground of appeal could be challenged given the Judge’s subsequent consideration of at least one of the rationales behind the constitution’s restrictions — namely, incentivising the appellant.23 Similarly, the conditions imposed on the respondent’s acquisition of the shares and the provision of leave to seek ancillary orders go some way towards addressing the restrictions’ issue. Nonetheless, I do not consider that these matters are sufficient to render this point of appeal “clearly untenable”. The appellant should be provided with an opportunity at the substantive
22 Decision under appeal, above n 1, at [121]–[122].
23 Decision under appeal, above n 1, at [119]–[120].
hearing to argue why the orders made are unjust in light of the restrictions in the constitution and the rationales that underly them.
[22] For completeness, I also record that while leave to seek ancillary orders mitigates some of the potential adverse consequences of the share transfer, such orders are limited to the mechanism of the transfer itself. They cannot be used to prevent the transfer. The appellant’s decision to proceed with his statutory right to an appeal rather than applying for ancillary orders cannot be held against him, given his position is that any share transfer would be unjust and an error of law. While this position may not succeed on appeal, it is one he is entitled to take as supported by his right of appeal under s 39 of the PRA.
The Family Court erred in law by failing to take into account that the share transfer would place the appellant in breach of his duty to act in the best interests of the company
[23] The decision under appeal does not refer to the Companies Act 1993 nor to directors’ duties under s 131. Ms Crawshaw submitted that the Judge should have considered these because [Company’s] directors may feel compelled under s 131 to refuse to transfer the shares in order to protect the best interests of the company.24
Discussion
[24] Although the Judge did not refer to the duty under s 131, I consider this duty is not engaged. As raised by Mr Johnson, s 131 only applies when a director is exercising power, or performing duties, as a director. The transfer of shares by way of a vesting order made by the Court is by way of operation of law.25 Therefore, it does not involve an exercise of power or the performance of duties as a director. In addition, I accept Mr Johnson’s submission that this Court should look askance at the suggestion that s 131 would enable directors to “veto” a Court ordered share transfer. No authorities have been provided to support the appellant’s approach.
24 I note, however, that the focus of this ground of appeal as recorded in the notice of appeal is on the appellant’s duties as a director, rather than the duties of the directors as a whole.
25 See Vey Group Ltd v Vance, above n 21, at [24].
[25] Further, it could be argued that although the directors may not actually be able to “veto” the share transfer, this duty remains a relevant consideration which impacts the appropriateness or fairness of the Judge’s orders. However, I disagree. Unlike the discussion concerning [Company’s] constitution, the director’s duties under s 131 do not, in of themselves, constitute a relevant consideration. There is no indication that this duty will be breached, nor any submissions about what the consequences of such a breach might be. I acknowledge that the “best interests of the company” are relevant. Even so, these interests are best considered under grounds three and four. It adds nothing of substance to frame this issue as a matter of directors’ duties. For the reasons above, the second ground of appeal should be struck out.
The Family Court erred in law by holding that the share transfer would achieve a just division of relationship property under the PRA, and erred in failing to craft orders that would minimise conflict in the division of relationship property and avoid unnecessary harm to the appellant’s future interests
[26] Mr Johnson submitted that these grounds are without merit, do not engage an error of law and are simply attempts to relitigate matters unsuccessfully advanced in the Family Court. Counsel highlighted that the Judge considered and rejected the appellant’s argument that he would not be motivated to achieve the best returns following any share transfer. His Honour considered the appellant would “remain motivated to maximise his remaining interest.”26
[27] Mr Johnson emphasised that the respondent does not wish to be anything more than a silent partner and does not want to be involved in business decisions. The respondent was involved with, and supported the ideology of, [Company] since before its incorporation and has a financial interest in its success. The Judge expressly considered the prejudice to both parties and concluded the fairest and most appropriate outcome was the vesting of 50 per cent of the shares in the respondent.27
[28] Counsel also noted that the appellant told the Family Court he could not pay the respondent for her portion of the shares — in which case, a transfer was the only available option. Although the appellant now claims he can pay the respondent for
26 Decision under appeal, above n 1, at [120].
27 Decision under appeal, above n 1, at [106]–[113].
her portion, Mr Johnson contended that no evidence has been provided to give the Court certainty on this point. Furthermore, the appellant did not seek extra time to obtain funding before the Family Court.
[29] In response, Ms Crawshaw submitted that this ground of appeal is not an attempt to relitigate matters, but rather an appeal alleging the Family Court decision was wrong in law and failed to properly consider the consequences of effectively locking the parties into an interminable business relationship. Counsel contended this would undermine the “clean break” policy of the PRA.
[30] Ms Crawshaw argued that a clean break requires the parties not to be business partners, and that it will be open to this Court to substitute its own view of what would achieve a just division of relationship property. Counsel referred to Crichton v Crichton where this Court amended a Family Court order to provide the respondent with an opportunity to pay a compensatory sum within two years. The Judge observed that a transfer of shares in that case would breach the clean break principle.28
[31] Lastly, Ms Crawshaw submitted that the transfer would also prejudice [Company’s] ability to preserve its capital and attract further investment — a consideration which she contended was not properly taken into account by the Judge.
Discussion
[32] I find that these grounds of appeal are reasonably arguable. The decision under appeal did not discuss the clean break principle nor did it consider how the share transfer might affect [Company’s] business, aside from its impact on the appellant’s motivation. There appears to be scope to argue that other orders may have been fairer, such as those made in Crichton. Ultimately, the success of these grounds of appeal may depend to a large extent on whether the appeal is characterised as being from the exercise of a discretion. However, given my finding that the approach on appeal is uncertain and should be determined at the substantive hearing, I adopt a similar conclusion here. Therefore, I find that the fairness and appropriateness of the orders should be argued in full at the substantive hearing.
28 Crichton v Crichton [1991] NZFLR 529 (HC) at 535.
The Judge erred in law by failing to take into account the appellant’s post-separation contributions (both past and future) to the value of his shareholding
[33] Mr Johnson submitted that the Judge has considered the appellant’s post-separation contributions to the value of the shareholding, including whether any future growth in the value of the shares will be due to post-separation efforts. Counsel contended that this ground of appeal is simply another attempt to relitigate matters unsuccessfully advanced in the first instance.
[34] Ms Crawshaw argued that the appellant’s salary does not properly reward him for his post-separation contributions to the value of [Company’s] shares. This ground of appeal is not limited to the appellant’s post-separation contributions between separation and the date of the hearing. It concerns a broader principle about the fairness of an order which binds the parties in a small business driven by the appellant and which takes no account of the differences in their respective future contributions within that business. It does not follow from a classification of the shares as relationship property that the respondent is equally entitled to share in [Company’s] future success. Ms Crawshaw also questioned the fairness of having the appellant essentially work for his former wife.
Discussion
[35] While I have doubts about its merits, I consider that this ground of appeal is not so clearly untenable as to be struck out. Although the Judge addressed the appellant’s post-separation contributions to the value of [Company’s] shares, it is reasonably arguable that the Judge erred when considering the fairness of the share transfer given the appellant’s significant and likely ongoing post-separation contributions.29 The clean break principle seems quite relevant. Moreover, consideration of the appellant’s post-separation contributions, and their impact on the appropriateness of the transfer, is not neatly captured under grounds three and four.
[36] As above, the success of this ground of appeal will likely depend on whether the appeal is characterised as being from the exercise of a discretion. Therefore, for
29 Decision under appeal, above n 1, at [111]–[113].
the reasons above and as discussed at [32], I find the ground should remain to be argued at the substantive hearing.
Is the appeal frivolous, vexatious or an abuse of process?
[37] Mr Johnson submitted that the appellant elected not to adduce evidence nor advance arguments that were otherwise available to him in the Family Court. To allow the appellant to do so now would be contrary to the interests of justice and an abuse of process. The respondent is entitled to finality in litigation and the appeal attempts to relitigate matters that were, or could and should have been, brought in the Family Court.30 Counsel contended that, apart from exceptional cases, judgments must be final.31 Therefore, Mr Johnson argued the present appeal should be struck out.32
[38] Ms Crawshaw submitted that the onus falls on the party alleging abuse of process to show the proceeding was brought for an improper purpose. This is a “heavy” onus and such a finding should only be made in exceptional circumstances.33 Counsel contended that the appeal does not raise new issues which should have been put before the Family Court. Rather, the case on appeal is that the Judge’s result was wrong in law and the Judge erred in: failing to take relevant considerations into account, failing to give certain factors sufficient weight and failing to consider alternative methods to divide the relationship property.
[39] To the extent the appellant’s case could have been better presented in the Family Court, Ms Crawshaw argued this was at least partly a result of the appellant being left without legal representation shortly before the Family Court hearing and being required to represent himself. In any event, the respondent does not suggest she would have run her case before the Family Court any differently had the appellant not incorrectly focused on issues of classification and jurisdiction. Accordingly, the grounds of appeal do not give rise to any prejudice to the respondent.
30 Citing White v Lynch [2015] NZHC 1020 at [45]–[47].
31 The Ampthill Peerage [1977] AC 547 (HL) at 569 and 576; approved in R v Smith [2003] 3 NZLR 617 (CA) at [48]–[49].
32 See Siemer v Stiassny [2011] NZCA 466 at [7], citing Siemer v Stiassny [2009] NZCA 624 at [65]–[66].
33 Williams v Spautz (1992) 174 CLR 509 (HCA) at 649; and Goldsmith v Sperrings Ltd [1977] 1 WLR 478 (CA) at 498.
[40] Counsel also submitted that the appeal does not concern issues which have been finally determined. Rather, the principle of finality in litigation is subject to a party’s properly exercised right of appeal.34 Contrary to the respondent’s submissions, the appellant does not need to show his case is an “exceptional one” to exercise statutory rights of appeal. A strike-out application should not be used to improperly prevent him from doing so. Counsel argued that Siemer v Stiassny does not support the respondent’s argument as it involved an appeal of a decision to strike out an application to set aside a High Court injunction, where Mr Siemer’s appeal rights had already been exhausted.35 Ms Crawshaw submitted that that appeal, though plainly vexatious and an abuse of process, is not analogous to the present case.
Discussion
[41] The proposed appeal is neither frivolous nor vexatious. For completeness, it concerns the transfer of shares with a significant value. Moreover, there is no impropriety in the sense ordinarily understood to fall within the category of vexatious. Rather, the parties’ submissions mostly concerned whether the appeal amounts to an abuse of process.
[42] I agree that the appeal is not an abuse of process. The appellant is exercising a statutory right to appeal under the PRA. Although there must be appropriate grounds, such appeals are not limited to exceptional circumstances. Both The Ampthill Peerage and R v Smith refer to appeals as an exception to the principle of finality in litigation.36 Lord Wilberforce’s judgment in The Ampthill Peerage only applied the threshold of “exceptionalism” to applications to appeal out of time or attacks against judgments on the ground of fraud. No such threshold applies to standard appeals. I also agree with Ms Crawshaw that Siemer v Stiassny is distinguishable.
[43] However, I am concerned by the change between the appellant’s position in the Family Court and on appeal. The focus in the Family Court was that the shares were not relationship property and had no value. On appeal, the appellant’s focus is now to secure alternative orders providing him with an opportunity to buy the respondent’s
34 Citing Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28], cited in White v Lynch, above n 30, at [42].
35 Siemer v Stiassny, above n 32, at [2]–[4].
36 The Ampthill Peerage, above n 31, at 569; R v Smith, above n 31, at [48]–[49].
shares. While concerning, I am not convinced this change is sufficient on the facts to amount to an abuse of process. There is no suggestion of improper purpose and the situation is mitigated by the last-minute departure of the appellant’s counsel before the Family Court hearing. Many of the issues raised by the appellant are not new but were raised before the Family Court — such as the restrictions in the constitution. I do not consider that the circumstances are sufficiently exceptional such that the Court’s jurisdiction to strike out the appeal for abuse of process should be exercised.
[44] My conclusion is that the respondent’s application to strike out the appeal must largely fail. I grant the application in relation to the second ground of appeal.
Leave to cross-appeal out of time
[45] If the respondent’s strike-out application is unsuccessful, the respondent sought leave to cross-appeal two findings of the Family Court out of time. First, that the relevant shares should be valued as of 1 April 2022. Second, that these shares are to be assigned a value of [Redacted].
[46] The application for leave to cross-appeal out of time is unopposed, and I consider it should be granted. At first blush, and with respect to the learned Judge, the issue of valuation was not canvassed in detail nor was an accurate and up-to-date valuation reached. Given his Honour’s decision to transfer the shares, doing so was not strictly necessary. However, if the transfer is set aside by the substantive appeal, then these valuation issues will re-emerge. Therefore, it is in the interests of justice for the respondent to have an opportunity to engage with those issues.
Decision
[47] The application to strike out the appeal is partially granted. The second ground of appeal is struck out.
[48]The application for leave to cross-appeal out of time is granted.
Harvey J
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