Cassidy v Calian - [2018] NZHC 3191

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-711

[2018] NZHC 3191

BETWEEN
DARRIN HUGH CASSIDY

Appellant

AND

ALEXANDRINA DENISA CALIAN

Respondent

Hearing: 19 November 2018

Appearances:

Appellant in Person

J M Greally for the Respondent

Judgment:

5 December 2018

JUDGMENT OF CULL J

[1] Mr Darrin Cassidy (Darrin) seeks leave to appeal against the costs decision of Judge Black, awarding $17,825 in costs against him, from a property dispute over the family home.1 The dispute over the family home of Darrin and Ms Alexandrina Denisa Calian (Denisa), following their separation, was the subject of a property relationship claim by Denisa and trust claims by Darrin’s parents. The dispute was resolved in a decision by Judge O’Dwyer on 2 February 2017,2 and on 20 June 2018, Judge Black issued a decision determining costs.

[2] Darrin, who is self-represented, applies for leave to appeal out of time against Judge Black’s decision ordering him to pay costs to Denisa. Darrin applies for a stay of execution of the decision pending his appeal. His appeal was filed 61 working days after the costs decision and was served 62 working days after that decision.

1 Calian v Cassidy [2018] NZFC 4239.
2 Cassidy v Cassidy [2016] NZDC 26113.

CASSIDY v CALIAN [2018] NZHC 3191 [5 December 2018]

[3] Denisa opposes leave to appeal. Denisa submits the delay is not insignificant, and there is no good evidence or credible explanation for the delay. Further, she will be prejudiced by the delay and there is little merit to the appeal.

Factual background

[4] Two sets of proceedings were issued in respect of the family home (the property). The first set of proceedings was issued by Denisa under the Property (Relationships) Act 1976 against her former husband, Darrin. He was the legal owner of the property, but it became their family home. The property was also subject to a mortgage debt.

[5] Darrin acquired the property in 1989. It was initially occupied by Darrin and his former partner, Ms McLoughlin. In 2001, they separated, and Darrin continued to live at the property.

[6] The second set of proceedings were issued by Mr and Mrs Cassidy Snr (Darrin’s parents) against Darrin and Denisa, claiming that Darrin holds 78 per cent of the property on trust for them through a resulting trust, or alternatively, a constructive trust. They claim that they provided Darrin with $93,529.72 to assist in his settlement of relationship property matters with his former partner, Ms McLoughlin. They say that there was an understanding between them and their son that they would have an interest in the property, which was undefined. They claimed that they acquired a 78 per cent share in the property. They also claimed that in consideration for the property being used as security for further borrowing to complete renovations at a later stage, their son granted Mr and Mrs Cassidy Snr a life interest in the bottom floor of the property (which…

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 Cassidy v Calian

Details

AGLC: Cassidy v Calian [2018] NZHC 3191
Case: [2018] NZHC 3191
Decision Date: 5 December 2018

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether Darrin Cassidy could appeal the costs decision and other orders made against him by Judge Black in a property dispute with his former wife, Alexandrina Calian. The court considered whether to grant leave for Darrin to appeal out of time, and if the appeal had any merit. The primary legal issues were whether the delay in filing the appeal was justified, and whether the costs and other orders made against Darrin were appropriate. The court found that Darrin played a significant role in the proceedings, contrary to his claim of minimal involvement. The court also found that the costs awarded were reasonable and reflected the outcome of the proceedings. The court concluded that the appeal lacked merit and was not in the interests of justice due to the significant delay in filing and the lack of a credible explanation for the delay. The appeal was dismissed, and leave to appeal out of time was declined.

Orders