Bradshaw v Bradshaw HC Wellington CIV-2007-485-378

[2007] NZHC 1680

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2007-485-378

UNDER  the Property (Relationships) Act 1976

IN THE MATTER OF     an appeal from a decision by the District

Court

BETWEEN  ROGER BADEN BRADSHAW Appellant

ANDMARY BETH BRADSHAW Respondent

Hearing:         28 February 2007

Appearances: Jane Forrest and Helen Musson for Appellant

Alexander Laurenson for Respondent

Judgment:      28 February 2007

JUDGMENT OF HARRISON J

SOLICITORS

Morrison Kent (Wellington) for Appellant

Catriona Doyle & Rohan Cochrane Law Office (Porirua) for Respondent

BRADSHAW V BRADSHAW HC WN CIV-2007-485-378  28 February 2007

[1]      Mr Roger Bradshaw has filed an appeal against decisions made in the Family Court at Wellington in December 2006, first, directing a sale of the family home and, second, terminating his right of occupation.

[2]      The appeal is set down for an urgent hearing in this Court on 16 March 2007. Mr Bradshaw applied to the Family Court on 26 February for an order staying the substantive orders made in that Court until final determination of the appeal.  Judge Vivienne  Ullrich QC  stayed  the  order  for  sale  but  refused  to  stay  the  order terminating Mr Bradshaw’s right of occupation.  A copy of the Judge’s decision is not presently available.

[3]      Yesterday  Mr Bradshaw’s   counsel,   Ms Jane   Forrest,   filed   an   ex parte application for orders staying the Family Court’s refusal to grant a stay; effectively Mr Bradshaw seeks an order  granting him  occupation  of  the  family home  until determination   of   the   substantive   appeal.      Through   the   registry,   I   directed Mr Bradshaw to apply on notice.  An urgent fixture was allocated for 2.15 pm today.

[4]      Ms Forrest  appreciates  that  in  the  absence  of a  transcript  of  the  Judge’s reasons  for  dismissing  Mr Bradshaw’s  application  for  stay,  and  given  that  she exercised a statutory discretion, this Court’s  powers  of  intervention  are  limited. Mr Laurenson   advised   that   Mrs Bradshaw’s   principal   reason   for   opposing Mr Bradshaw’s continued occupation of the house is his default in meeting mortgage commitments on the property.

[5]      After conferring with both counsel, I make an order varying the orders made in the Family Court on 26 February, granting Mr Bradshaw the right of exclusive occupation of the family home until further order of this Court or determination of his appeal, whichever event occurs the sooner, on the strict conditions that by 5 pm on 5 March 2007:

(1)Mr Bradshaw is to provide Mrs Bradshaw’s solicitors with a letter  from  the  Bank  of  New Zealand  as  mortgagee  of  the family home confirming that all outgoings under the mortgage are currently satisfied and that Mr Bradshaw is not in arrears

of   any    contractual    obligations,    including    payments    of principal, interest and rates;

(2)Mr   Bradshaw   is   to   provide   a   written   undertaking   to Mrs Bradshaw that he will continue to meet all obligations under the mortgage as they fall due until determination of his appeal.

[6]      I emphasise that this order will lapse in the event of Mr Bradshaw’s failure to comply with either of these conditions.

[7]      I reserve leave to Mrs Bradshaw to make further application to this court. However, I expect that both parties will now focus their attention on preparation for the hearing of Mr Bradshaw’s substantive appeal and that neither will trouble the Court further with interlocutory applications pending its determination.

[8]      The question of costs is reserved.

Rhys Harrison J