Duncan v Duncan
[2014] NZHC 1852
•7 August 2014 at 4pm
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2014-404-001009 [2014] NZHC 1852
IN THE MATTER of the Family Proceedings Act 1980 BETWEEN
ALISON LESLEY DUNCAN Appellant
AND
BRUCE LESLIE DUNCAN Respondent
Hearing: 15 July 2014 Appearances:
A L Duncan (Appellant) in person, with B Croy as McKenzie
Friend
S Langston for RespondentJudgment:
7 August 2014 at 4pm
(RESERVED) JUDGMENT OF ANDREWS J
This judgment is delivered by me on 7 August 2014 at 4pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
DUNCAN v DUNCAN [2014] NZHC 1852 [7 August 2014 ]
Introduction
[1] On 24 April 2014, Ms Duncan filed a notice of appeal against “part of the directions of Judge D A Burns” given on 24 March 2014 in a proceeding brought under s 182 of the Family Proceedings Act 1980. The grounds of appeal are that the Judge erred in fact and in law in refusing to make an order for discovery against the respondent, Mr Duncan.
[2] Ms Duncan’s appeal was filed on 24 April 2014 (one day out of time), but not served on Mr Duncan until 5 May 2014. Under r 20.6(1) of the High Court Rules, an appeal is not brought until it has been served on the respondent. Ms Duncan’s appeal was, therefore, not brought until 5 May 2014. Ms Duncan has filed an application for an extension of time to appeal. As Ellis J noted in a Minute dated 20
May 2014, the prospective merits of Ms Duncan’s appeal are likely to be relevant to
the determination of her application for an extension of time.
[3] Mr Duncan abides the decision of the Court as to whether such leave should be given, but has applied for an order striking out Ms Duncan’s appeal on the grounds that:
(a) it is an appeal against an interlocutory decision, and leave has not been sought for the appeal to be brought; and
(b) the appeal is without merit and is an abuse of process.
[4] The hearing on 15 July 2014 focussed on the merits of Ms Duncan’s appeal,
and whether it was an abuse of process.
Background
Claim under the Property (Relationships) Act 1976
[5] The Duncans were married in September 1984 and separated on 1 May 2007. In March 2010, Ms Duncan filed an application in the Family Court seeking orders under the Property (Relationships) Act 1976 (“the PRA proceeding”). Apart from the former family home and chattels, the assets in dispute comprised a motor launch,
bank accounts, company shares, interests in companies in which Ms Duncan and/or
Mr Duncan were involved, and loans advanced to Ms Duncan’s business.
[6] Ms Duncan has long contended that Mr Duncan has not provided complete and accurate financial information in relation to, in particular, his business interests. These largely comprised a group of companies: SpotX Cape to Cape Limited (“SXCC”), SpotX Fishing Forecast Limited (“SXFF”), SpotX Fishing Guide Limited (“SXFG”) (collectively, “the SpotX companies”) and C.Swish Agencies Limited (“C.Swish”). Directions and rulings were made by the Family Court regarding requests and applications made by Ms Duncan in respect of disclosure of information.
[7] Following a hearing in the Family Court on 14 June 2013, Judge Burns made substantive orders in the PRA proceeding (“the substantive judgment”)1 The Judge held that the SpotX companies had either no value, or negative value, and directed that they be transferred to Mr Duncan to be his separate property.2
[8] Both Ms Duncan and Mr Duncan applied for the substantive judgment to be recalled. Ms Duncan sought recall to address “two critical points” which, she submitted, were that Mr Duncan had avoided providing reliable financial records and that the value of the SpotX companies had been hidden. In a reserved judgment delivered on 19 February 2014, Judge Burns declined to make a discovery order or
to revisit the value of the SpotX businesses (“the recall judgment”).3
[9] Mr Duncan appealed to the High Court against Judge Burns’ substantive judgment. Ms Duncan cross-appealed, on the grounds that Judge Burns erred in failing to include and value the SpotX companies and C.Swish in her favour, and that Mr Duncan had consistently refused to provide information or discovery as to the status and value of his business interests. The latter ground was, in effect, an appeal
against the recall judgment.
1 ALD v BLD [2013] NZFC 7768.
2 At [37]–[38].
3 ALD v BLD [2014] NZFC 1084.
[10] The appeal and cross-appeal were heard by Gendall J on 18 March 2014, and
his Honour’s judgment was delivered on 26 March 2014 (“the appeal judgment”).4
[11] On both grounds, Ms Duncan’s appeal was dismissed. Regarding the value of the SpotX companies, Gendall J referred to affidavit evidence from the Duncan’s former joint accountant, and accountant to the family businesses, that Mr Duncan’s businesses had no value. His Honour observed that it appeared “that it was accepted by all parties that these businesses had little value.”5
[12] Regarding disclosure and discovery issues, Gendall J referred to Family Court rulings concerning Ms Duncan’s requests for discovery. His Honour recorded that “right from the outset counsel acting for [Mr Duncan] indicated that the joint accountant had been instructed to make available to [Ms Duncan] all information she required including with regard to [Mr Duncan’s] businesses and no complaints or unmet demands appeared to result.”6 His Honour concluded that:7
I am satisfied that the discovery order sought by [Ms Duncan] and any suggested claim to [Mr Duncan’s] business interests have been appropriately dealt with and long closed. [Ms Duncan’s] cross appeal is without merit and it is dismissed.
[13] Ms Duncan applied to Gendall J to recall the appeal judgment on the grounds that his Honour had erred in making certain decisions, including the decision to dismiss her cross-appeal. His Honour was satisfied that Ms Duncan had not established that any of the grounds on which a judgment could be recalled applied in the present case.8 His Honour was satisfied that all relevant appeal matters had been appropriately dealt with in the appeal judgment, and this was not one of those situations where exceptional circumstances existed such that the interests of justice
required revisiting the judgment.9
4 BLD v ALD [2014] NZHC 579.
5 Appeal judgment at [66].
6 At [67].
7 At [69].
8 Citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
9 BLD v ALD [2014] NZHC 1030.
Claim under the Family Proceedings Act 1980
[14] On 12 June 2013 (shortly before the substantive hearing of the PRA proceeding) Ms Duncan filed an application under s 182 of the Family Proceedings Act 1980, seeking the division of trust property. This proceeding is founded on the basis that ownership of the shares in SXCC is registered as being held as to 49 per cent by Mr Duncan, Ms Duncan, and Mr B C McNiece as trustees of the Duncan Trust. Ms Duncan alleged that SXCC should not, for that reason, have been dealt with the PRA proceeding.
[15] In the substantive judgment in the PRA proceeding, Judge Burns referred to the FPA proceeding, and noted that a notice of defence and affidavit in reply had been filed. As noted earlier, the Judge held that the shares in SXCC had no value, and that any interest Ms Duncan had in SXCC was to be transferred to Mr Duncan.
[16] On 20 January 2014, Judge Burns directed a judicial settlement conference for the FPA proceeding. However, in directions dated 24 March 2014, Judge Burns recorded that “it is clear … that there is no prospect of settlement at this stage.”
[17] In the same directions, Judge Burns referred to Ms Duncan’s application for discovery in the FPA proceeding, and declined to make an order (“the discovery ruling”).10 The Judge said:11
[4] … Mrs Duncan for her part has filed submissions for today’s conference and she seeks documentary material which is set out in paragraph one of her memoranda of 21 March. She has sought this information previously before me in the context of the Property (Relationships) Act proceedings. She now says that this is in the context of the s 182 proceedings.
[5] She contends that the shares in the Spotex companies are at least as to 49 per cent held by the trusts and do not form part of the relationship property. The difficulty is that I have made a ruling that they do fall within the relationship property context. Obviously I have either done so correctly or incorrectly. Mr Duncan contends that that was the correct categorisation of those shares. Mrs Duncan does not accept that.
[6] The difficulty for me is that I have made a ruling on this and I am now functus officio and, therefore, I cannot revisit the issue myself. I
10 Duncan v Duncan FC Auckland FAM 2013-004-1363, 24 March 2014.
11 At [4]-[6].
therefore decline to make an order for further discovery in the context of the s 182 proceedings because they have been determined to be relationship property but of nil value.
[18] This is the ruling against which Ms Duncan filed the notice of appeal which was the subject of the hearing before me.
Submissions
[19] Ms Duncan submitted that her appeal against Judge Burns’ discovery ruling is on the grounds that the Judge was wrong to hold that the SpotX companies were relationship property, and wrong to rule that, for that reason, any issue as to whether they were trust property, and as to discovery of documents, had been determined. Ms Duncan further submitted that full and accurate information as to the SpotX companies, and Mr Duncan’s financial circumstances, had not been put before the Courts. Without full and accurate information, she submitted, the Courts could not make accurate findings.
[20] Ms Langston submitted on behalf of Mr Duncan that issues as to whether Mr Duncan had provided proper disclosure, and as to the status and value of the SpotX companies, had been determined in the PRA proceeding, in exactly the same context as Ms Duncan now sought to have them determined in the FPA proceeding. That context was the determination of the status of property, its valuation, and entitlement to it. Ms Langston submitted that whether the SpotX companies were relationship property or trust property was in issue before Judge Burns, and he held in the substantive judgment that they were relationship property.
[21] Ms Langston submitted that although Ms Duncan had appealed against the substantive judgment, she did not appeal against the finding that the SpotX companies were relationship property. Accordingly, she submitted, that issue has been finally determined and cannot be re-litigated.
[22] Ms Langston further submitted that the issue of discovery had also been finally determined. Judge Burns’ refusal to order further discovery (in the recall judgment) was upheld on appeal. Ms Langston submitted that in the light of that final determination, that issue, too, could not be re-litigated. Accordingly, she
submitted, neither of the grounds of Ms Duncan’s appeal had any merit. She further submitted that it is an abuse of the Court’s process to attempt to re-litigate issues that have been finally determined.
Discussion
[23] Rule 20.4 of the High Court Rules provides that an appeal must be brought within the specified period for appealing. Rule 20.3 provides that the Court may extend time for appealing. An extension of time to appeal is an indulgence, and is within the discretion of the Court. One of the considerations affecting the exercise of the discretion is the prospective merits of the appeal.
[24] I have concluded that Ms Duncan’s appeal has no merit, and cannot succeed. Accordingly, an extension of time to appeal should not be granted. Alternatively, if an extension of time were to be granted, the appeal must fail.
Discovery
[25] Ms Duncan has, as noted earlier, long contended that the Courts have not had full and accurate information, and that she has sought further information in the interests of justice to ensure that a fair result is achieved. She made that submission before Gendall J,12 and it was rejected. The same submission was made again before me, notwithstanding that I was not (and could not be) sitting on appeal against the judgment of Gendall J. As Judge Burns recorded in the discovery ruling, Ms Duncan was seeking in the FPA proceeding the same information as she had previously sought in the PRA proceeding.13
[26] Ms Duncan’s applications for further disclosure have been finally determined by the appeal judgment. Her appeal against Judge Burns’ refusal to order further discovery in the FPA proceeding has no merit, and cannot succeed. Further, to re- litigate the issue of discovery, which has been finally determined, would be an abuse
of the Court’s process.14
12 Appeal judgment, above n 4 at [67].
13 Discovery ruling, above n 10 at [4].
14 See Siemer v Stiassny [2011] NZCA 1 at [19].
[27] I also record, as did Gendall J, the instructions given by Mr Duncan to the accountant, to provide Ms Duncan with all relevant financial information. After the hearing before me (in the course of which the instructions were confirmed) evidence was filed as to information provided to Ms Duncan. In response, Ms Duncan contends that the information is inaccurate, and should have been provided by Mr Duncan rather than the accountant. However, even if Ms Duncan is correct on both points, that does not alter the fact that Ms Duncan’s contentions have been made before, and have been finally determined.
Status of SpotX companies
[28] The status of the SpotX companies was at issue in the Family Court before Judge Burns. He held in the substantive judgment that they were relationship property, and of no value. Ms Duncan appealed (without success) against the determination that the companies were of no value, but did not appeal against the determination that they were relationship property. Judge Burns’ substantive judgment therefore stands as a final determination.
[29] Accordingly, as the status of the SpotX companies as relationship property has been finally determined, Ms Duncan’s appeal against the discovery ruling (insofar as it relates to her submission that Judge Burns erred in saying that the companies were relationship property) has no merit and cannot succeed. Further, as set out above, to attempt to re-litigate the issue, which has been finally determined, would be an abuse of the Court’s process.
[30] Ms Duncan’s submission that Judge Burns erred in saying that he could not re-visit the issue of the status of the SpotX companies also has no merit, for the same reasons. As was said in Horowhenua County v Nash (No. 2), “Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal”.15 The Judge did not err in saying that he had made a ruling, correctly or
incorrectly, and could not re-visit the issue himself.
15 Horowhenua County v Nash (No. 2), above n 8 at 633.
Result
[31] I have concluded that neither of the grounds of Ms Duncan’s appeal has any merit, and her appeal is bound to fail. Accordingly, it is not appropriate for an extension of time to be given for the appeal to be brought.
[32] I record that, had I concluded that an extension of time should be given, I
would have dismissed the appeal.
[33] Costs are reserved. If costs are sought by Mr Duncan, then a brief memorandum is to be filed within 15 working days of the delivery of this judgment. Ms Duncan may respond by way of a brief memorandum within a further 15
working days. I would anticipate making a decision on the papers.
Andrews J
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