Booth v Booth
[2019] NZHC 3445
•19 December 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-454-59
[2019] NZHC 3445
BETWEEN JASON PAUL BOOTH
Applicant
AND
TANIA JAYNE BOOTH
Respondent
Hearing: 13 December 2019 Appearances:
J Maassen for applicant J Delany for respondent
Judgment:
19 December 2019
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
[1] The respondent, Ms Tania Booth (Tania), seeks an order transferring this proceeding pursuant to the Property (Relationships) Act 1976 commenced by the applicant, Mr Jason Booth (Jason), from the High Court to the Family Court. The proceeding was originally commenced in the Family Court in July 2017. It was transferred to this Court pursuant to s 38A of the Property (Relationships) Act by Judge Smith in a decision dated 15 June 2018. The reason the Judge transferred the proceeding is clear from his Honour’s judgment. The couple’s principal relationship property consists of shares in a company by the name of Poplar Road Farms Ltd. The Judge was aware that that company owed a substantial debt to Jason’s father from whom it had purchased the family farm, and that Jason’s father was proposing to commence proceedings in this Court for an order for the rectification of a deed recording the terms of the loan, which would have the effect of increasing the company’s debt to Mr Booth Snr and correspondingly reducing the value of the shares owned by Jason and Tania. The Judge concluded that as the parties’ relationship
BOOTH v BOOTH [2019] NZHC 3445 [19 December 2019]
property proceeding could not be resolved until the value of the company shares owned by Jason and Tania was determined, and there was a strong argument in favour of the transfer of the proceeding so that these matters could all be determined in one court.
[2] As it happens, following Judge Smith’s judgment, and the transfer of this Property (Relationships) Act proceeding to this Court, not only were proceedings commenced by Mr Booth Snr for the rectification of the deed, but Tania Booth commenced proceedings in this Court for an order pursuant to s 182 of the Family Proceedings Act 1980 in which she alleged that the loan arrangements constituted a nuptial settlement caught by that provision and sought relief.
[3] This Court was thus seized of all three proceedings. They were set down together for a case management conference on 4 December 2018. At that conference I made directions for the disposal of them.
[4] Mr Booth Snr’s rectification proceeding has now been resolved. It was determined by Clark J in a judgment dated 26 February 2019.1 The outcome was that the debt owed to Mr Booth Snr by Poplar Road Farms was increased from
$1,150,251.99 to $1,579,134.94. Tania’s Family Proceedings Act proceeding has also been resolved. The parties to that proceeding were Tania, Jason and Mr and Mrs Booth Snr. Jason sought summary judgment and Mr and Mrs Booth Snr sought an order striking out the proceeding on the basis that the statement of claim disclosed no tenable cause of action against them. In a judgment dated 25 September 2019, I entered summary judgment for Jason and made the order sought by Mr and Mrs Booth Snr.2 My judgment is the subject of an appeal to the Court of Appeal.
[5] In the meantime, Tania has commenced a further proceeding in the Family Court in which she claims interim and final spousal maintenance. That proceeding is being dealt with in the Family Court. Counsel tell me that there is no prospect of it being transferred.
1 Booth v Poplar Road Farms Ltd [2019] NZHC 807.
2 Booth v Booth [2019] NZHC 2424, [2019] NZFLR 225.
[6] As already said, Tania now applies for the re-transfer of the Property (Relationships) Act proceeding and her Family Proceedings Act proceeding to the Family Court. Obviously, only the Property (Relationships) Act proceeding can be dealt with as this Court is functus officio insofar as the Family Proceedings Act proceeding is concerned.
[7] The first question that arises is whether this Court has jurisdiction to transfer the Property (Relationships) Act proceeding to the Family Court. That may appear a surprising question. However, on behalf of Jason, Mr Maassen submitted that this Court does not have jurisdiction to do so.
[8] Mr Maassen drew my attention to s 94 of the District Court Act 2016 concerning the transfer of proceedings from this Court to the District Court, of which the Family Court forms a division.3 That section provides that the High Court may on the application of a party to a proceeding commenced in the High Court transfer the proceeding to the District Court inter alia if the subject matter of the proceeding is within the District Court’s jurisdiction. I accept that s 94 of the District Court Act is the only express provision relating to the transfer of proceedings from this Court to the District Court. As Mr Maassen emphasised, it is predicated on the assumption that the proceeding was commenced in this Court. At least initially, Jason’s proceeding was not.
[9]Relevantly, however, s 38A(4) of the Property (Relationships) Act provides:
(4) Any proceedings transferred to the High Court by an order made under subsection (1) continue in that court as if they had been properly commenced there.
[10] Although Mr Maassen contended otherwise, in my view, this is, in effect, a deeming provision. A proceeding transferred to this Court under s 38A is treated as if it had been commenced in this Court. As such, s 94 of the District Court Act applies to this proceeding.
3 See Family Court Act 1980, s 16.
[11] In relation to this both Mr Delany for Tania and Mr Maassen for Jason focussed their attention on the judgment of Williams J in EBS v CAS.4 In that case, the High Court was faced with the same issue albeit under earlier legislation. Williams J reached the same conclusion that I have in relation to the present provisions:
[19] There is a general power in the High Court to transfer proceedings to the District Court (of which the Family Court is a division). Section 46 of the District Courts Act 1947 makes this clear … Section 16 of the Family Courts Act 1980 provides that the District Courts Act 1947 applies to Family Courts
… The problem is that this transfer provision applies only to proceedings commenced in the High Court. This proceeding was of course commenced in the Family Court.
[20] Mr Delany refers specifically to r 189(2) of the Family Court Rules Act 2002 to overcome this difficulty. That sub rule provides:
On transfer, the proceedings continue as if they were originally filed
in the Court to which they have been transferred. (My emphasis)
…
[22] In my view, Mr Delany is right. A plain reading of r 189(2) requires me to treat these proceedings as if they were filed (and therefore commenced) in this court. …
[23] In any case it seems to make little sense that transfer can be ordered where proceedings have commenced in the High Court but not if proceedings commenced in the Family Court and should in justice be returned there. I of course agree with Mr Hodson QC that this Court must be vigilant in preventing forum or indeed judge shopping. Transfer is not to be granted without good reason. But these are properly matters for judicial discretion not jurisdiction.
[24] I find therefore that s 46 of the District Courts Act 1947 and the deeming provision in r 189(2) together with r 191 of the Family Courts Rules Act 2002, combine to give this court jurisdiction to transfer this proceeding to the Family Court where to do so would be in the interests of justice. Of course I include within that phrase ‘the interests of justice’, the achievement of a speedy and inexpensive determination of any proceedings.
[12] Mr Maassen contends that for this Court to order the transfer of the proceedings back to the Family Court would effectively involve the Court treating this application as an appeal from or application to review Judge Smith’s original decision. I disagree. At the time that Judge Smith made that decision there was a good and proper reason for transferring the proceeding to this Court.
4 EBS v CAS [2013] NZHC 2427.
[13] If the circumstances as they existed when Judge Smith made his decision have changed, then, in my view, the fact that the proceeding was originally commenced in the Family Court and transferred to this Court is not an impediment to this Court reconsidering the issue of the most appropriate forum for the resolution of the dispute and if necessary transferring it back.
[14] Accordingly, my view is that there is no jurisdictional impediment to this Court making an order for the transfer of the proceeding to the Family Court.
[15]That brings me to the question of whether that is an appropriate course to take.
[16] Mr Delany submitted that, with the rectification proceeding disposed of, what is left is a standard Property (Relationships) Act proceeding, possibly coupled with an application pursuant to s 182 of the Family Proceedings Act (depending upon the outcome of Tania’s appeal), and an application for spousal maintenance. There is considerable force in his argument that those matters are all matters the Family Court was established to deal with and matters with which the specialist judges in that Court should deal.
[17] Additionally, Mr Delany said that this litigation is putting a significant burden on the entire Booth family, and in particular Tania, and therefore Jason and Tania’s children, and that the transfer of the proceedings to the Family Court will assist to alleviate that burden because — by and large — litigation is less expensive in the Family Court.
[18] Finally, Mr Delany makes the point that to the extent that there is an advantage in one court dealing with all outstanding litigation, then it needs to be borne in mind that Tania has commenced proceedings for spousal maintenance in the Family Court, which should probably be dealt with in conjunction with the Property (Relationships) Act proceeding and, if Tania is successful in her appeal, the Family Proceedings Act claim.
[19] As against that, Mr Maassen submitted that the High Court is now familiar with this litigation, having dealt with Mr Booth Snr’s rectification proceeding and
Tania’s Family Proceedings Act proceeding, and that the Court is well placed to deal with the Property (Relationships) Act proceeding (and if necessary the Family Proceedings Act proceeding), and that these matters can be dealt with independently of Tania’s claim for spousal maintenance.
[20] Mr Maassen too expressed concern about the toll that all this litigation is taking on the Booth family and said that the transfer of Jason’s Property (Relationships) Act proceeding “mid-stream” would only serve to increase this.
[21] Finally, Mr Maassen submitted that one of the primary reasons why Jason resists the transfer of the proceeding is that whereas in this Court the parties might expect to get a hearing early in 2020, if the proceeding were to be transferred to the Family Court there is no guarantee that the proceeding could be dealt with quickly and that more urgent cases are likely to delay a fixture. Even, Mr Maassen said, if the parties were to agree to arrange to have the proceeding heard in the Family Court at Wellington, as opposed to Palmerston North, where it was originally filed, there is still a real risk that they would not be able to obtain a fixture within a reasonable period of time.
[22]I have tried to balance all of these considerations.
[23] My understanding of Judge Smith’s judgment and the reason that he transferred the proceeding is that he perceived that the core dispute between Jason and Tania relating to the division of their relationship property could not be resolved until such time as the value of the shares in Poplar Road Farms was determined and that that could only be determined following the resolution of Mr Booth Snr’s rectification proceeding which was to be, if it was not already at that stage, commenced in this Court and had to be determined here. That reason for the transfer of the proceeding no longer exists. The value of the shares has been determined. In my view the proper home for the litigation that still needs to be dealt with, that is to say Jason’s Property (Relationships) Act proceeding, Tania’s Family Proceedings Act proceeding (assuming she is successful in the Court of Appeal) and Tania’s proceeding for spousal maintenance is the Family Court. That, after all, is the Court that was established to deal with such matters in the first instance with specialist judges.
[24] In addition to that, it will reduce — marginally at least — the costs of the litigation for everyone involved.
[25] I accept Mr Maassen’s concern that the transfer of the proceeding may raise the potential of further delay. However, with an appropriate level of cooperation between counsel, it seems to me that the answer to that is to arrange for the proceedings to be heard in the Family Court at Wellington and for counsel to make an approach to that Court with a view to having this litigation put on case management so as to ensure that it is heard as soon as possible.
[26] Over and above that, I understand from Mr Delany and Mr Maassen that efforts have been made to resolve the litigation or at least aspects of it, so as to reduce the issues for trial, and I would certainly encourage every effort along those lines.
[27] For those reasons, pursuant to s 94 of the District Court Act and s 16 of the Family Court Act, I order the transfer of this proceeding to the Family Court.
[28] I reserve costs, not having heard from counsel as to these. My preliminary view is that Tania as the successful applicant is entitled to costs on a 2B basis. I would expect counsel to resolve costs. And if they cannot they may revert by memorandum in the usual way.
Associate Judge Johnston
Solicitors:
Wadham Partners, Palmerston North for applicant Chapman Tong Law, Wellington for respondent
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