Duncan v Duncan - [2014] NZHC 1852

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 Respondent

Judgment:

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…

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 Duncan v Duncan

Details

AGLC: Duncan v Duncan [2014] NZHC 1852
Case: [2014] NZHC 1852
Decision Date: 7 August 2014 at 4pm

CaseChat Overview and Summary

The case of Duncan v Duncan concerns an appeal by Alison Lesley Duncan against a ruling by Judge D A Burns in a proceeding brought under section 182 of the Family Proceedings Act 1980. Ms Duncan sought an order for discovery against Bruce Leslie Duncan, but Judge Burns declined to make such an order. Ms Duncan filed a notice of appeal on 24 April 2014, but did not serve it on Mr Duncan until 5 May 2014. Mr Duncan applied for the appeal to be struck out on the grounds that it was an appeal against an interlocutory decision, and leave had not been sought for the appeal to be brought. Additionally, Mr Duncan argued that the appeal was without merit and an abuse of process.

The primary legal issues the court was required to decide were whether the appeal was within the time limit, whether an extension of time to appeal should be granted, and whether the appeal had any merit. The court found that the appeal was not brought until it was served on Mr Duncan, which was on 5 May 2014. Regarding the extension of time, the court considered the prospective merits of Ms Duncan's appeal, which were likely to be relevant to the determination of her application for an extension of time. However, the court concluded that Ms Duncan's appeal had no merit and could not succeed. The court held that the issues of discovery and the status of the SpotX companies had been finally determined and could not be re-litigated. The appeal was an abuse of the Court's process.

The court dismissed the appeal and noted that costs were reserved. If Mr Duncan sought costs, he was to file a brief memorandum within 15 working days of the delivery of the judgment, and Ms Duncan could respond by way of a brief memorandum within a further 15 working days. The court anticipated making a decision on the papers.

Orders