Boskett v Boskett

[2018] NZHC 2758

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002219 [2018] NZHC 2758

BETWEEN

DAVID CHARLES BOSKETT

Applicant

AND

WILMA TANGDOL BOSKETT Respondent

Hearing:	11 October 2018
Appearances:	The Applicant in Person L Kearns for the Respondent
Judgment:	24 October 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 24 October 2018 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Party:

D C Boskett

Counsel:

Lynda Kearns, Barrister, Auckland

DAVID CHARLES BOSKETT v WILMA TANGDOL BOSKETT [2018] NZHC 2758 [24 October 2018]

[1]      This is an application by Mr Boskett for leave to appeal to the Court of Appeal.

[2]      On 22 June 2018, I issued a judgment allowing Mr Boskett’s appeal from the decisions of Judge McHardy in the Family Court at Auckland on 26 July 2017 and

6 September 2017.1   The net effect of my judgment was to reduce the amount owing

by Mr Boskett to Mrs Boskett under the ultimate Family Court judgment from approximately $120,000 to $57,000.

[3]      Mr Boskett succeeded on the appeal in substantial part because I allowed him to introduce new evidence without having even made any formal application to do so.

[4]      The facts of the case are set out in my judgment.  More detail is set out in the

2017 judgments of Judge McHardy.2

[5]      The parties were married for about 10 years and had two children.   They separated in March 2009.  Mrs Boskett first issued relationship property proceedings in December 2009.  Mr Boskett appears to have represented himself throughout.  He failed to provide details of his assets, despite Court orders to do so. Following a formal proof hearing, he was ordered to pay $5,100 plus costs, and certain chattels were vested in Mrs Boskett’s possession.  Mrs Boskett had to take steps to enforce that judgment.  I understand it is still largely unmet.

[6]      In early 2016, Mr Boskett’s brother advised Mrs Boskett that, in late-2014,

Mr Boskett had purchased a house at 69 Budge Street, Blenheim, for $245,000, and had  asked  him  to  keep  that  secret.     That  led  to  further  proceedings  and Judge McHardy’s two judgments.  Mr Boskett filed affidavit evidence, but did not appear at the hearings.  He acknowledged that the various assets that were cashed-up for the house purchase were in existence at the date of separation but said they were pre-marital assets.  Judge McHardy found otherwise.

[7]      As noted above, I allowed the appeal in part. The principal assets that remained in the category of relationship property following my judgment on the appeal, were

1      Boskett v Boskett [2018] NZHC 1596.

2      Boskett v Boskett [2017] NZFC 5953; Boskett v Boskett [2017] NZFC 7127.

the proceeds of sale of Heartland Bank shares and money formerly in a bank account in the name of “Today’s Realty Ltd”.

[8]      Mr Boskett’s main argument on appeal is that he “would like the Court to rule that his shares in Heartland Bank and the money he had in the bank account in

March 2009 are not relationship property”. There are other points raised by him.

[9]      To support his appeal, and particularly his main ground, Mr Boskett also seeks leave to provide and obtain further documentation.

[10]     In granting the appeal in Mr Boskett’s favour, I allowed him a very significant indulgence in letting in new evidence, which is unusual on appeal.  Strictly speaking, that evidence should not have been allowed in. It was reasonably available and should have been provided to the Family Court.   I then accepted Ms Kearns’ concession regarding  the  Pfizer  superannuation  fund.    I  also  enquired  of  Mr  Boskett  and

Ms Kearns with regard to the value of the Budge Street property, and took their answers into account in deciding to add interest to Mrs Boskett’s share of relationship property, rather than proceeding on the basis of the higher value on which the Judge relied, which would also have required a consideration of occupation rent, interest and other adjustments. That approach also operated to Mr Boskett’s benefit.

[11]     This was all in circumstances where the way in which Mr Boskett has run the case does not merit any indulgence, and has operated to Mrs Boskett’s significant disadvantage.   Mr Boskett has failed to comply with the relevant rules, failed to comply with Court orders and failed to attend hearings in the Family Court.  It would not be at all surprising if most of the small sum Mrs Boskett is now due, has been necessarily expended in legal fees and other expenses.

[12]     In Waller v Hider, the Court of Appeal established that a second appeal would not be allowed unless there was a question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of further appeal.3

[13]     It is quite clear from Waller v Hider and all of the cases where the test has been applied, that a case such as this does not merit a second appeal.

[14]     To begin with, leave to appeal would also involve my granting Mr Boskett leave to introduce yet further evidence, which would be quite wrong.

[15]     Furthermore, there is no point of sufficient importance in this case to outweigh the cost and delay of a further appeal.   I understand that the case is of extreme importance to Mr Boskett, but the very point that the Court of Appeal is making in Waller v Hider is that is not the basis for granting leave to appeal to the Court of Appeal. There is no question of law involved, and the case involves a relatively small amount of money.

[16]     I also do not agree, as I said in my earlier judgment, with Mr Boskett’s repeated submission that the outcome is unjust.   I make that observation, as I did in my judgment on appeal, in response to Mr Boskett’s submissions, not as a basis for my decision.

[17]     I understand fully from Mr Boskett’s submissions on the leave application, and from the submissions he made on the appeal itself, that he feels highly aggrieved and disadvantaged.  He was extremely critical in his written and oral submissions of all parties involved, including the Family Court Judge, his brother, real estate agents,

Ms Kearns, and a lawyer who he had been to see who he said still owed him $2,000. He observed that he was sick of complaining about people.

[18]     I can only ask Mr Boskett to read again the comments I made at the conclusion of my judgment on the appeal. I urge him to move on and try to maximise his position regarding the Budge Street property. Assuming it does have to be sold, he should be working on maximising the price, as any upside goes to him.  He should also avoid incurring more in the way of costs orders, and interest.  Mr Boskett said it will be difficult for him to rent because of the high demand from vineyard workers in Blenheim,4 but that demand should also reflect in the selling price of Budge Street.

Conclusion

[19]     The application for leave to adduce further evidence is declined and the application for leave to appeal is dismissed.

[20]     There is no jurisdiction, nor basis, for this Court to make the other orders sought  in  Mr  Boskett’s  application,  including  an  order  to  halt  the  sale  of  the Budge Street  property,  and  an  order  that  Mrs  Boskett  supply  2007-2008  bank statements.

[21]     Mrs Boskett is entitled to costs and disbursements on a 2B basis.

----------------------------------------------------- Hinton  J