Foote v Rea

[2012] NZHC 1120

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2011-470-000315 [2012] NZHC 1120

BETWEEN  JOHN EDWARD FOOTE Appellant

ANDTRACY LEANNE REA Respondent

Hearing:         on the papers

Counsel:         E J Hudson for Appellant

R J Collis for Respondent

Judgment:      15 May 2012

JUDGMENT OF KEANE J

[re application for leave to appeal]

This judgment was delivered by  on 15 May at 10am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Neilson Law, Hamilton

JOHN EDWARD FOOTE V TRACY LEANNE REA HC TAU CIV 2011-470-000315 [15 May 2012]

A C Wright, Parnell

[1]      In a decision, dated 19 May 2010, Lang J upheld in part the decision of Judge S J Maude, dated 8 June 2009, in which the Judge had set aside a relationship property agreement because it left out of account funds sequestered in a United States trust of which Mr Foote was the beneficiary.

[2]      In that decision on appeal Lang J resolved all issues of law but was unable to resolve two confined issues of fact because neither had come into prominence at first instance. Neither Mr Foote nor Ms Rea had given evidence on those issues, let alone been  cross-examined  on  them.  Neither  issue  had  featured  in  Judge's  Maude's decision then under appeal. Lang J remitted those issues of fact to Judge Maude.

[3]      In a decision, dated 11 April 2010, Judge Maude, having received further evidence from Mr Foote and Ms Rea, adhered to his original conclusion that the agreement was unjust, because it left the trust funds out of account. He declined to revisit the issues of law resolved on the first appeal. Mr Foote then brought a second appeal.

[4]      In my decision, dated 15 March 2012, I held that the issues of law that Mr Foote still wished to revisit did not and could not arise on an appeal from Judge Maude's  second  decision.  Mr Foote now seeks  leave to  appeal  to  the Court  of Appeal.[1]

[1] Judicature Act 1908, s 67(1).

[5]      A decision of this Court, on an appeal from the Family Court, is final unless leave is given to appeal to the Court of Appeal. To qualify, the proposed question of law or fact must be capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and

delay of the further appeal.[2]

[2] Snee v Snee [2000] NZFLR 120; (1999) 3 PRNZ 69 (CA); Waller v Hider [1998] 1 NZLR 412 (CA).

[6]      The questions Mr Foote now wishes to take to the Court of Appeal, insofar as they are questions of law, ought to have been pursued, it seems to me, on an appeal

against Lang J's decision. They cannot arise on an appeal from my decision, which was confined to the issues of fact that Lang J remitted to Judge Maude and those remitted issues do not seem to me to have sufficient significance to warrant a further appeal.

[7]      The issues in this case are quite usual issues in family relationships and the fact that an offshore asset is in question does not render the case any more exotic. There have been two first instance hearings and two appeals. There needs to be

finality. I decline leave to appeal to the Court of Appeal.

P.J. Keane J