Boyd v Kendick - [2019] NZHC 873

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1949

[2019] NZHC 873

IN THE MATTER Of an appeal against an order dissolving marriage (Family Proceedings Act 1980)

BETWEEN

ROGER GRAEME BOYD

Appellant

AND

SUZANNE JOAN KENDRICK

Respondent

Hearing: 16 April 2019

Appearances:

Appellant in person

C E A Townsend for the Respondent

Judgment:

17 April 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 17 April 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BOYD v KENDRICK [2019] NZHC 873 [17 April 2019]

[1] The appellant, Roger Boyd, has appealed a decision of the Family Court dissolving his marriage to the respondent, Suzanne Kendrick.1

[2] There is no dispute that Mr Boyd’s appeal was filed in time. It was filed on 12 September 2018, the last day for filing being 14 September 2018.2 An appeal is not brought however simply by filing an appeal. Instead, pursuant to r 20.9 of the High Court Rules, a copy of a Notice of Appeal is also required to be filed in the office of the court appealed from and a copy of the Notice of Appeal is also required to be served on every party directly affected by the appeal within the 20 working day time limit for bringing the appeal.

[3] At the first case management conference for this appeal Ms Townsend, for Ms Kendrick, advised the Court that Ms Kendrick was not served with a Notice of Appeal until the parties’ daughter provided a copy given to her by Mr Boyd on either
31 December 2018 or 1 January 2019, well outside the prescribed time limit. Normally the Court would have jurisdiction to enlarge this time but in this case s 174(4) of the Family Proceedings Act 1980 applies and states:

(4)The High Court shall not extend the time for appeal against an order dissolving a marriage or civil union.

[4] Upon being made aware of the issue, Mr Boyd sought and was granted by Hinton J six weeks to prepare submissions, that is until 19 March 2019, prior to the appeal being recalled in the appeals list on 16 April 2019.

[5] In the event Mr Boyd filed no submissions on the issue, although he has filed two memoranda seeking an extension of the time required to file submissions.

Mr Boyd’s position

[6] At the hearing before me, Mr Boyd reiterated his submission that he should be given more time to make submissions. On the substantive issue, he also submitted that the decision of MacKenzie J in W v W3 stood for the proposition that all that was

1      Kendrick v Boyd [2018] NZFC 6158.
2      High Court Rules 2016, r 20.4(2)(b): specifies a 20 working day limit for the filing of appeals, the Family Court decision being issued on 17 August 2018.
3      W v W HC WN CIV-2008-485-1526 30 July 2008.

required to bring a valid appeal…

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 Boyd v Kendick

Details

AGLC: Boyd v Kendick [2019] NZHC 873
Case: [2019] NZHC 873
Decision Date: 17 April 2019

CaseChat Overview and Summary

The case of Boyd v Kendrick involved an appeal by Roger Boyd against a Family Court decision dissolving his marriage to Suzanne Kendrick. Boyd's appeal was filed on the last permissible day, but the crucial issue was whether the required procedural steps were correctly followed. Specifically, Kendrick was not served with the Notice of Appeal until 31 December 2018 or 1 January 2019, well beyond the 20 working day limit stipulated by the High Court Rules. The court had to determine whether this procedural lapse invalidated the appeal, and if so, whether the court had any jurisdiction to extend the time limit under section 174(4) of the Family Proceedings Act 1980.

The court found that for an appeal to be validly brought, it must be filed in the High Court, filed in the Family Court, and served on the respondent. There was no dispute that Boyd had not arranged for service of the Notice of Appeal on Kendrick, and it was likely he had also failed to file the appeal in the Family Court. The court dismissed Boyd's argument that only filing in the High Court was necessary, citing the case of W v W which did not suggest that an appeal against a dissolution order could bypass the normal procedural requirements. Instead, the court emphasized the importance of certainty in matters affecting status, which necessitated adherence to the strict time limits for appeals.

Consequently, the court held that since Boyd's appeal was not brought within the statutory time limit and section 174(4) of the Family Proceedings Act explicitly prohibits the extension of time for such appeals, the appeal was out of time and invalid. The court had no jurisdiction to entertain the appeal and it was accordingly struck out. Kendrick was entitled to costs on a 2B basis, with any dispute over the amount to be determined following the filing of memoranda.

Orders