Evans v Page
[2025] NZHC 1810
•3 July 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-604 [2025] NZHC 1810
BETWEEN SHERILYN JAYNE EVANS
Appellant
AND MATTHEW JOHN PAGE
Respondent
On the papers:
Counsel: Appellant in person
C J Dellabarca for Respondent
Judgment: 3 July 2025
JUDGMENT OF GRAU J
[Applications for leave to appeal and stay]
Introduction
[1] On 6 May 2025, I dismissed Ms Evans’ appeal against the decision of the Family Court ordering the sale of two properties co-owned by Ms Evans and her former partner, Mr Page. I ordered that the properties were to be placed on the market no later than 1 July 2025.
[2] On 5 June 2025, Ms Evans filed an application seeking leave to appeal to the Court of Appeal, and for the High Court’s decision to be stayed pending determination of the application for leave to appeal, any subsequent application to the Court of Appeal for leave to appeal, and any substantive appeal in the event leave is granted.
[3] Mr Page opposes the applications, on the basis that there was no error in the High Court’s decision, and that there are no grounds for the judgment to be stayed, with a stay only causing further prejudice to him.
EVANS v PAGE (LEAVE TO APPEAL) [2025] NZHC 1810 [3 July 2025]
[4] I provided an opportunity to Ms Evans to file submissions in support of her application to appeal and/or in response to Mr Page’s memorandum. Ms Evans says she has not been able to respond, although she also says she has sourced a lot of material but she has been unable to turn her notes into written submissions. She notes Mr Page did not file a formal notice of opposition and she has requested a transcript of the hearing of her appeal in the High Court.
The parties’ positions
[5] Ms Evans’ application contends that, in the context of her application for legal aid that remains under consideration, the manner in which the proceedings were conducted has materially disadvantaged her. As a result, she says the Court was “unable to consider potentially significant evidence, including evidence necessary for her to respond properly to points “that only came up for the first time during the Family Court hearing or decision”. She also considers the decision to be wrong, because she says there was no valid evidential basis for finding that a delay in selling the properties was likely to decrease the pool of relationship property.
[6] Ms Evans also says that staying the enforcement of the judgment is necessary because sale of the properties would render nugatory the appeal for which leave is sought.
[7] Mr Dellabarca, for Mr Page, submits that the question of legal aid is irrelevant. He observes Ms Evans had known for some time that the hearing of her appeal needed to proceed either with or without a grant of legal aid. He notes Isac J’s comments in the lead up to the appeal, and after the appeal hearing had already twice been vacated, that Ms Evans had sufficient time to pursue a grant of legal aid, and to prepare for her appeal hearing in the event she was unable to secure legal aid. Ms Evans was not precluded from seeking leave to adduce fresh evidence on appeal in the High Court, but any such evidence would not have changed the outcome. There was no error in law or fact in the High Court decision, which correctly referred to the theoretical nature of the argument put forward by Ms Evans and found the Family Court Judge did not err.
[8] Mr Dellabarca further submits that a stay should not be granted, as there is no matter of public interest or novel point of law that requires leave or a stay to be granted. He says this is simply a further attempt by Ms Evans to delay the inevitable outcome of the Family Court decision that was upheld on appeal. He notes the parties separated three years ago, Family Court proceedings have been ongoing for two years and the Family Court decision that was the subject of the appeal was nearly a year ago, with Mr Page continuing to meet the outgoings on the properties, now in excess of
$365,000. These proceedings continue to prevent Mr Page from being able to move on. Mr Dellabarca says there is no merit in the leave application, and granting a stay would simply delay the inevitable.
Legal principles
[9] The orders made in the Family Court decision and upheld by the High Court were made under the Property (Relationships) Act 1976 (PRA). Under that Act, the decision of the High Court is final unless a party obtains leave to appeal against the decision to the Court of Appeal.1 For leave to be granted, the appeal must raise a question of law or fact capable of bona fide and serious argument, and involve a public or private interest of sufficient importance to outweigh the cost and delay of a further appeal.2 The purpose of a second appeal to the Court of Appeal is not general correction of error, but rather to clarify the law and determine whether it has been properly construed and applied by the Court below.3 When the disputed matter is entirely or largely a question of fact, the task of the applicant for leave is harder.4
[10] In respect of the application for a stay, r 17.29 of the High Court Rules 2016 (HCR) provides that a liable party may apply to the Court for a stay of enforcement of the judgment on the ground that a substantial miscarriage of justice would be likely to result if the judgment were enforced. Rule 12 of the Court of Appeal (Civil) Rules 2005 also provides as follows:
1 PRA, s 39B(1) and Senior Courts Act 2016, s 60(1).
2 Waller v Hider [1998] 1 NZLR 412 (CA) citing Rutherford v Waite [1923] GLR 34 and Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 at 346–347.
3 Snee v Snee [2000] NZFLR 120 (CA) at [22].
4 Waller v Hider, above n 2, at 413.
(3)Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on an interlocutory application,—
(a)order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or
(b)grant any interim relief.
(4)An order or a grant under subclause (3) may—
(a)relate to execution of the whole or part of the decision or to a particular form of execution:
(b)be subject to any conditions that the court appealed from or the Court thinks fit, including conditions relating to security for costs.
(5)If the court appealed from refuses to make an order under subclause (3), the Court may, on an interlocutory application, make an order under that subclause.
(6)If the court appealed from makes an order under subclause (3), the Court may, on an interlocutory application, vary or rescind that order.
[11] Although Ms Evans has not particularised the basis on which she seeks a stay of enforcement of the judgment, given the primary basis upon which it is sought is to enable her to pursue appeal, I will apply the test under r 12. I note that r 12 appears to set a lower threshold than r 17.29 of the HCR.5 The relevant principles under r 12 were summarised in Keung v GBR Investments Ltd:6
[11] …In determining whether to grant a stay, the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”. Factors to be taken into account in this balancing exercise include:
(a)whether the appeal may be rendered nugatory by the lack of a stay;
(b)the bona fides of the applicant as to the prosecution of the appeal;
(c)whether the successful party will be injuriously affected by the stay;
(d)the effect on third parties;
(e)the novelty and importance of questions involved;
5 Okey v Kingsbeer [2024] NZHC 2426 at [20].
6 Keung v GBR Investments Ltd [2010] NZCA 396, [2012] NZAR 17 at [11] (footnotes omitted).
(f)the public interest in the proceeding; and
(g)the overall balance of convenience.
That list does not include the apparent strength of the appeal, but that has been treated as an additional factor.
Leave to appeal
[12] I agree with Mr Dellabarca that the submissions about Ms Evans’ legal aid application are largely irrelevant to this application for leave to appeal. The decision to proceed to a hearing despite Ms Evans being unable to secure legal aid was made prior to the decision Ms Evans seeks to appeal.
[13] Regardless, I note here that Ms Evans’ application for an interim grant of legal aid was declined on 10 October 2024, and that the original hearing date of 2 December 2024 was adjourned to enable Ms Evans application for reconsideration of legal aid to “reach its conclusion”. Although interim legal aid was granted on 21 November 2024, which allowed Ms Evans to receive legal assistance in her application for legal aid in these proceedings, further delay in confirming a substantive grant of legal aid meant the hearing scheduled for 25 February 2025 also had to be adjourned. On 21 February 2025, Ms Evans’ application for legal aid was declined, and her application for reconsideration was also refused on 8 April 2025. Given this procedural history, I consider McHerron J was correct to find in his minute dated 10 April 2025 that “the time for procedural wrangling is well and truly over”. Ms Evans was given a number of opportunities to secure legal aid, but she was unsuccessful. The appeal was adjourned twice for that purpose. This is not a case where a litigant was not afforded the chance to secure legal representation.
[14] Nor was Ms Evans unable to raise further evidence in support of her appeal. As noted by Mr Dellabarca, Ms Evans expressly considered the issue of seeking leave to adduce fresh evidence in the High Court, but she took no further steps. While of course she would have been assisted by legal counsel if she had been granted legal aid, as already noted, Ms Evans was afforded considerable time, and the hearing of the appeal was considerably delayed.
[15] The main issues that Ms Evans appears to be raising about the High Court’s decision are questions of fact, such as whether delaying sale would be likely to increase or decrease the pool of relationship property. As noted in Waller v Hider such questions are seldom matters of public importance justifying the cost and delay of further appeal.7 This case was a relatively orthodox application of s 25 of the PRA, which weighed the prejudice to Ms Evans, in having to find alternative accommodation, against the costs borne by Mr Page in continuing to service the mortgages on the two properties and to pay the other outgoings, and the risk of the properties continuing to decrease in value.
[16] I note too that Ms Evans’ case had changed on appeal. In the Family Court, she had agreed to the sale of one property and was asking for a set period of time (until January 2025) to reach a position where she could buy out Mr Page’s interest in the second property. On appeal, she had resiled from the agreement to sell one of the properties and she was asking the Court to grant her an indeterminate period of time, until resolution of relationship property proceedings in the Family Court (which have been ongoing for two years and, at the time of the appeal hearing had no hearing date), to achieve the same end.
[17] In these circumstances, I do not consider Ms Evans has raised any questions of law or fact of sufficient significance to justify leave to appeal being granted.
Stay application
[18] I accept that Ms Evans’ appeal would be rendered nugatory by the lack of a stay, as the properties Ms Evans wants to retain would be placed on the market and might already be sold. It also seems clear that Ms Evans is serious about prosecuting the appeal, given that, if she is successful, she would be able to keep her current residence. While I have declined to grant her leave to appeal, she is still able to make a further application for special leave to the Court of Appeal.
[19] However, it is also apparent that Mr Page will be injuriously affected by the stay. He has been successful in the Family Court and in the High Court which have
7 Waller v Hider, above n 2, at 413.
both ordered sale of the properties. If a stay was granted he would, for a further and possibly considerable period of time, be required to continue to bear the costs of two properties that he does not live in or receive any income from. He would also, potentially, face a further reduction of his capital due to a continuing reduction in the properties’ value, and would remain unable to move on with his life more than three years post-separation. As already noted, there is no clear novelty or importance in the questions of fact or law involved in Ms Evans’ appeal, nor is there any public interest in what is a private dispute over relationship property. As is clear from my findings regarding leave to appeal, I also do not consider the prospective appeal is strong.
[20] In terms of where the overall balance of convenience lies, weighing these competing factors leads me to a conclusion that the balance of convenience lies against granting the stay. As Mr Dellabarca emphasises, the parties separated three years ago, and I have concerns that granting a stay would simply enable Ms Evans to continue to delay the sale of the properties, when there remains no prospect in sight of her achieving a position where she is able to purchase Mr Page’s interest. Granting the stay would also not accord with the principles of the PRA, particularly the principle that relationship property issues should be resolved as inexpensively, simply, and speedily as is consistent with justice.8
[21] For completeness I note that I do not consider Mr Page’s failure to file a formal notice of opposition to be a factor in favour of the applications being granted. Nor am I prepared to countenance any further delay from Ms Evans’ wish to read a transcript of the appeal hearing. The Court does not produce a transcript of such hearings and it will not routinely order the preparation of one unless there is a good reason to do so. As Ms Evans has a right of access to the audio recording of the hearing under r 9(1)(a) of the Senior Courts (Access to Court Documents) Rules 2017, there is no need for a transcript of the hearing to be produced.
8 PRA, s 1N(d).
Result
[22] The applications for leave to appeal and to stay the enforcement of the High Court’s decision are declined.
Grau J
Copies to:
S J Evans, Wellington
C J Dellabarca, Wellington for Respondent
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