Boswell v Korving
[2022] NZHC 2459
•27 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-921
[2022] NZHC 2459
BETWEEN KATHRYN FRANCES BOSWELL
Appellant
AND
ANTHONY ROBERT KORVING
First respondent
ANTHONY ROBERT KORVING and
GRAHAM GUNN as Trustees of theROBERT KORVING FAMILY TRUST
Hearing: 21 September 2022 Appearances:
Appellant in person (remotely) M A Tapsell for first respondent
No appearance for or by second respondent
Date of judgment:
27 September 2022
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 27 September 2022 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
…………………………
Registrar/Deputy Registrar
Solicitors:
Law & Associates, Auckland
Copy to:
The appellant
BOSWELL v KORVING [2022] NZHC 2459 [27 September 2022]
[1] Kathryn Boswell appeals against the 9 May 2022 decision of Judge K Tan in the Family Court at Manukau,1 declining her application for transfer of the relationship property proceeding between the parties to this Court.
Background
[2] The Family Court proceeding concerns determination of the parties’ “pool of relationship property”, and in particular if Ms Boswell’s contributions resulted in a constructive trust.2
Applicable legislation
[3]Section 38A of the Property (Relationships) Act 1976 (the Act) provides:
Transfer of proceedings to High Court
(1) A Family Court Judge may order the transfer of proceedings to the High Court if the Judge is satisfied that the High Court is the more appropriate venue for dealing with the proceedings.
(2) In considering whether to make an order under subsection (1), the Judge must have regard to—
(a)the complexity of the proceedings or of any question in issue in the proceedings:
(b)any proceedings before the High Court that are between the same parties and that involve related issues:
(c)any other matter that the Judge considers relevant in the circumstances.
(3) An order may be made under subsection (1) on—
(a)the application of a party to the proceedings; or
(b)the court’s initiative.
(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.
1 Boswell v Korving [2022] NZFC 4154.
2 At [3].
Judgment under appeal
[4] Judge Tan identified, under s 38A, she was to determine if this Court was “the more appropriate venue for dealing with [Ms Boswell’s proceeding]”.3 Contrary to Ms Boswell’s contentions, the Judge found there was “no financial limit to the Family Court[’]s jurisdiction when making determinations under the Act”;4 and the Family Court had both jurisdiction and competence to address trust issues arising.5 The Judge rejected Ms Boswell’s concerns for Family Court judges’ alleged (mis)conduct and partiality provided any ground for transfer.6
[5] On appeal, Ms Boswell argues Judge Tan erred in holding the Family Court had jurisdiction to address trust issues without her consent, and explains she lacks confidence in the Family Court’s personnel and case management to give her justice.
Approach on appeal
[6] Appeals to this Court from the Family Court are general appeals conducted by way of rehearing,7 in which Ms Boswell bears the onus of satisfying me I should differ from the Family Court’s decision. I only am justified in interfering with that decision if I consider the decision is wrong — in other words, the Judge erred.8
[7] I then am to come to my own assessment of the merits of the case afresh, without deference to the Family Court (save for some caution in differing on witness credibility, when I have not had the advantage of observing the witnesses).9 I may rely on the Judge’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.10
[8] To the extent the decision involved exercise of the Judge’s discretion, I only may interfere with it if the appellant establishes the Judge acted on wrong principle,
3 At [5].
4 At [13].
5 At [18] and [22].
6 At [30].
7 Property (Relationships) Act 1976, s 39; High Court Rules 2016, r 20.18.
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
9 At [13].
10 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
did not address relevant matters or took into account irrelevant matters, or was “plainly wrong”.11
[9] After hearing the appeal I may make any decision I think should have been made, or direct the Family Court to rehear the proceeding or consider and determine any particular matter.12
Discussion
[10] I see no error in Judge Tan’s decision. Ms Bowell’s appeal perhaps is explicable by her status as an unrepresented litigant, if lacking comprehension of law’s operation.
[11] The Family Court plainly has jurisdiction under the Trusts Act 2019 to “make any order or give any direction available under [that] Act … to give proper effect to any determination of the proceeding”.13 Ms Boswell’s contention such was dependent on her consent only applies if the Family Court was to “make any order available under [the] Act to resolve an issue or a dispute between the parties that is closely related to the proceeding” (and then only if “necessary or desirable to assist the resolution of the proceeding”).14 But determination of trust issues is a fundamental part of the proceeding here, whether or not it results in the making of orders under the Trusts Act.
[12] Ms Boswell’s lack of confidence in the Family Court’s processes and personnel is no basis for the transfer of her Property (Relationships) Act proceeding to this Court. Instead, by the Property (Relationships) Amendment Act 2001, Parliament decreed “[e]very application under [that] Act must be heard and determined in the Family Court … subject to any other provision of [the] Act that confers jurisdiction on any other court”.15 No such ‘other provision’ has application to the proceeding here. Unless a Judge was to determine the High Court a more appropriate venue for its determination, which Judge Tan self-evidently has not, only the Family Court can hear and determine Ms Boswell’s proceeding.
11 May v May (1982) 1 NZFLR 165 (CA) at 170; and Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [24].
12 High Court Rules 2016, r 20.19(1).
13 Trusts Act 2019, s 141(2).
14 Section 141(3).
15 Property (Relationships) Act, s 22(1).
Result
[13]Ms Boswell’s appeal is dismissed.
Costs
[14] In my preliminary view, from what I presently know — as the unsuccessful party in this straightforward proceeding able to be conducted by counsel considered junior in the High Court, in which a normal amount of time appears reasonable for each step on the appeal — Ms Boswell should pay 1B costs to Mr Korving on each step in the appeal.
[15] If my view is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda each of no more than five pages
— annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by Mr Korving within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.
—Jagose J
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