Booth v Booth - [2021] NZCA 112

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA529/2019
[2021] NZCA 112

BETWEEN	TANIA BOOTH Applicant
AND	JASON BOOTH First Respondent RAY CHARLES BOOTH Second Respondent ANN BOOTH Third Respondent

Court:	Goddard, Ellis and Katz JJ
Counsel:	Applicant in Person J W Maassen for First Respondent G M Richards for Second and Third Respondents
Judgment: (On the papers)	14 April 2021 at 11.00 am

JUDGMENT OF THE COURT

A The application for recall is declined.

BThe applicant must pay the respondents one set of costs for a standard application on a band A basis, with usual disbursements.

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REASONS OF THE COURT

(Given by Goddard J)

The application before the Court

The applicant, Ms Tania Booth, seeks recall of the judgment of this Court dated 25 September 2020 (the CA judgment).[1] That judgment dismissed an appeal by Ms Booth from a decision of the High Court granting applications for summary judgment by Jason Booth, and for strike out by Ray and Ann Booth, in respect of a claim by Ms Booth under s 182 of the Family Proceedings Act 1980 (the FPA).[2] In this judgment we will refer to the parties using their first names, as we did in the CA judgment.

Background

[1]Booth v Booth [2020] NZCA 451 [CA judgment].

[2]Booth v Booth [2019] NZHC 2424, [2019] NZFLR 225 [Judgment of Associate Judge Johnston].

In order to understand the grounds on which Tania seeks recall of the CA judgment it is necessary to set out the background to the appeal that came before this Court. The central question in Tania’s appeal was whether a family arrangement in relation to a farming business was capable of amounting to a post-nuptial settlement for the purposes of s 182 of the FPA. This Court held that it was not reasonably arguable that the family arrangement, or some element of it, amounted to such a settlement.
A central element of the family arrangement was the sale of the farming business by Ray to Poplar Road Farms Ltd (PRF). Jason and Tania were at all relevant times equal shareholders in, and directors of, PRF. PRF did not pay the full purchase price for the business at the time of the arrangement. A deed dated 1 November 2011 (the Deed), signed by both Tania and Jason as directors of PRF, recorded the existence of a debt in respect of the unpaid balance of the purchase price. In the Deed, PRF was described as the “Debtor” and Ray was referred to as the “Creditor”. Recital A recorded that Ray had advanced $1,150,251.99 to PRF. Recital B recorded that he had done so to help PRF to purchase the farm. The debt figure used in the Deed was indicative only, because the transaction occurred halfway through the financial year. The actual debt figure was to be ascertained at year end. The details of what happened following the year end are set out in the CA judgment.[3] In short,…

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 Booth v Booth

Details

AGLC: Booth v Booth [2021] NZCA 112
Case: [2021] NZCA 112
Decision Date: 14 April 2021 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an application by Tania Booth to recall the judgment of the Court dated 25 September 2020. Tania sought to appeal the decision of the High Court, which dismissed her appeal from the grant of applications for summary judgment by Jason Booth and for strike out by Ray and Ann Booth in relation to a claim by Tania under section 182 of the Family Proceedings Act 1980. Tania argued that the financial evidence relied upon in the rectification proceedings and in the Family Proceedings Act proceedings was "manipulated and misleading." She wished to appeal the decision that the debt was due, that the loan was payable, and that it was never intended to be gifted and is not a nuptial settlement. Tania also sought to appeal the Court of Appeal's decision in the Family Proceedings Act proceedings.

The Court of Appeal found that Tania had not established that the interests of justice required recall of the judgment. The Court of Appeal judgment was premised on the existence of a debt owed by Poplar Road Farms Ltd to Ray, which was not a matter in dispute in the Family Proceedings Act proceedings. Tania's complaint appeared to be focused on the High Court rectification judgment, which confirmed the existence of a debt owed by Poplar Road Farms Ltd to Ray. However, the appeal before the Court of Appeal was not an appeal from the High Court rectification judgment. Recall of the Court of Appeal judgment would not enable Tania to challenge the correctness of the High Court rectification judgment before the Court of Appeal.

The Court of Appeal declined Tania's application for recall and ordered her to pay a single set of costs for a standard application on a band A basis to the respondents, with usual disbursements.

Orders