Hair v Cook
[2025] NZCA 547
•17 October 2025 at 11:00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA471/2024 |
| BETWEEN | IAN MUIR HAIR |
| AND | ANNA JENNIE COOK |
| Court: | Hinton and Whata JJ |
Counsel: | G M Illingworth KC and R M N Marsich for Appellant |
Judgment: | 17 October 2025 at 11:00 am |
JUDGMENT OF THE COURT
AThe respondent’s application to adduce further evidence is granted on the basis set out in [14] and [16].
BThe appellant’s application to adduce further evidence is granted in part, on the basis set out in [22]. The application is otherwise declined.
CCosts are reserved pending determination of the appeal.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
On 12 November 2024, Mr Hair (the appellant) was granted leave by this Court to bring an appeal against a decision of the High Court, on appeal from the Family Court, ordering him to pay interim spousal maintenance to Ms Cook (the respondent).[1] The Family Court ordered payment at the rate of $6,580 per week.[2] The High Court reduced the award to $6,000 per week.[3] Both courts relied on Mr Hair having access to trust capital. Leave was granted on the basis that the appeal raises an issue relating to the circumstances in which trust resources can be considered for the purposes of interim spousal maintenance proceedings, an issue on which there is an absence of Court of Appeal authority.[4]
[1]Hair v Cook [2024] NZCA 584 [leave judgment]; and Cook v Hair [2023] NZFC 8246 [Family Court judgment].
[2]Family Court judgment, above n 1, at [47].
[3]Hair v Cook [2024] NZHC 347 [judgment under appeal] at [83(d)].
[4]Leave judgment, above n 1, at [4].
The respondent and the appellant have each applied to adduce further evidence in respect of the appeal. The appellant only applies to adduce further evidence if the respondent is granted leave. We address the two applications below.
We note, before doing so, that this appeal has been somewhat overtaken by developments since leave was granted. There have been a significant number of applications and appeals in this proceeding, since the appeal was filed. These relevantly include the making of two further interim maintenance orders, both of which, in turn, have been the subject of appeals to the High Court, resulting in those applications being remitted to the Family Court for re-hearing.[5]
[5]See Hair v Cook [2025] NZHC 1677 at [26]; and Hair v Cook [2025] NZHC 1679 at [27].
Of particular relevance to this appeal, original counsel for Ms Cook was debarred from related relationship property proceedings in September 2024,[6] and subsequently withdrew from this proceeding (concerning the Family Proceedings Act 1980) on the eve of the hearing of a further application to debar, being 13 May 2025. This has raised a new issue regarding the current interim maintenance award as the award is substantially to cover Ms Cook’s former counsel’s fees. Mr Hair argues that he should not have been exposed to a maintenance liability for fees that were not properly incurred. Further discovery was sought and we understand this issue is the subject of a further hearing yet to take place in the Family Court. We raise these issues because if Mr Hair is successful, a large part of the interim maintenance award may fall away, or be the subject of a further appeal to the High Court, which would in turn impact on the efficacy and timing of this appeal.
Background
[6]This was on the basis that counsel had certified contracting out agreements which Ms Cook was seeking to overturn.
We adopt the background as set out in the judgment under appeal.[7] The parties separated in August 2022 after approximately 20 years together. They had a contracting out agreement and subsequent variation agreement, which are being challenged by Ms Cook in the relationship property proceedings.
[7]See judgment under appeal, above n 3, at [14]–[19].
The primary assets of the relationship are held in trusts. The Hair Family Trust (HFT) and the Muirian Trust (MT) were settled by Mr Hair in 2003 and 2005 respectively. The HFT’s trustees are Mr Hair and his lawyer’s trustee company. The MT’s trustees are Mr Hair and his lawyer. Mr Hair is the settlor of both trusts. The HFT’s beneficiaries are Mr Hair, Ms Cook, any child or grandchild of Mr Hair, and any spouse of Mr Hair. The MT’s beneficiaries are the same, but do not include any spouse of Mr Hair. Ms Cook has the status of “preferred beneficiary” in the MT, a term which is not defined.
The HFT owns all but one of the shares in IMH Holdings Ltd (IMH); the other is owned by Mr Hair. Mr Hair is IMH’s sole director. IMH owned 11 properties in the greater Auckland area at the end of the parties’ relationship. IMH also owns all of the shares in two companies, Parks and Maintenance Services Ltd (a company through which Mr Hair’s services are provided to Auckland Council) and Platinum Corporation Ltd.
The MT owns a substantial residential property in Takapuna which the Family Court Judge described as having an approximate value of $8 million.[8]
Legal principles
[8]Family Court judgment, above n 1, at [6(e)].
The requirements that apply to an application under r 45 of the Court of Appeal (Civil) Rules 2005 are that the evidence must be fresh, credible, and cogent.[9] The threshold for the admission of evidence is “very strict”,[10] but updating evidence on relevant matters will often meet these criteria.[11]
[9]Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192, affirmed in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6], n 1; and Erceg v Balenia Ltd [2008] NZCA 535 at [15].
[10]Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 9, at 193.
[11]Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1), above n 9, at [10]; and Hodgson v Hodgson [2015] NZCA 404, [2015] NZFLR 979 at [41].
Evidence will not be regarded as fresh “if it could, with reasonable diligence, have been produced at the trial”.[12] This Court has previously emphasised the impracticality of “attempting to compare detailed fresh evidence with all the evidence given at trial”, given that the object of the rule is “to allow the evidence given at trial to be supplemented, and not to open the door to a complete or substantial rehearing of the case”.[13] This Court has also observed that “[i]t is exceptional for evidence that is not fresh to be admitted”.[14]
[12]Rae v International Insurance Brokers (Nelson Marlborough) Ltd, above n 9, at 192, as cited in Erceg v Balenia Ltd, above n 9, at [15].
[13]Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Brookers, updated to 4 September 2025) at [CR45.02(2)] citing Sulco Ltd v E S Redit & Co Ltd [1959] NZLR 45 (CA) at 74–75 per Hutchison J.
[14]LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610 at [123].
Evidence must be cogent, “which in practical terms means it could affect the outcome of the proceeding”.[15]
Ms Cook’s application
[15]Johnson v Johnson [2023] NZCA 566 at [62].
We distil Ms Cook’s various applications down to an application to adduce the following evidence:[16]
(a)The MT’s financial statements showing a long standing loan by Mr Hair to the MT of $3.25 million, this being an asset and a potential means of payment for maintenance purposes that Ms Cook says was not disclosed (the MT financial statements).
(b)Evidence of the sale of one of IMH’s properties to a third party on 26 July 2024, which Ms Cook stresses was the day after Mr Hair successfully obtained an adjournment of a hearing of her interlocutory application for orders including a restraining order (IMH sale documents).
(c)An affidavit sworn by Mr Hair on 2 October 2024 that states Mr Hair has received $454,039 from the trusts to pay his legal fees, accounting and other expenses associated with the various proceedings (the October 2024 affidavit).
[16]To the extent Ms Cook’s applications may exceed the three key points discussed below, we consider it discursive. Any relevant background to the proceedings can be raised by way of submission.
Mr Hair contests the application principally on the following grounds:
(a)The MT financial statements are not fresh nor cogent.
(b)The IMH sale documents and the October 2024 affidavit are not cogent.
It is not clear from the application which of the MT’s financial statements Ms Cook seeks to adduce but we grant leave in respect of the financial statements for the year ending 31 March 2023, being the financial year ending after the separation.[17] As Mr Hair submits, these are not fresh. They were provided to Ms Cook on 17 February 2023, well before the first interim maintenance hearing. With reasonable diligence they could have been adduced in the Family Court, and it is surprising that leave was not at least sought in the context of the High Court appeal. However, the loan asset was not declared in Mr Hair’s affidavit of assets and liabilities and Ms Cook says, in part for that reason, her former counsel did not properly review the financial statements until much later or did not comprehend their significance. We find that curious. Nonetheless, this Court cannot condone what on the face of it is significant non-disclosure or significant inattention on Mr Hair’s part to his affidavit of assets and liabilities.[18] In those circumstances, we are prepared to treat the evidence as “fresh” or to overlook the fact that it is not. The financial statements are credible, and evidence as to a potential significant asset is cogent to maintenance proceedings where Mr Hair has put at issue his ability to pay maintenance from his reasonable means and his ability to control or reasonably access trust resources.
[17]These statements will also summarise the 2022 financial information.
[18]As discussed below, Mr Hair says the loan is not in fact his asset but all assets recorded in a party’s name should be declared in an affidavit of assets and liabilities with an appropriate explanation as to why they are claimed to be owned by others.
Whether the loan is ultimately material is arguable, as will be apparent when we address Mr Hair’s application below, but we accept the evidence should be available to this Court.
We also grant leave in respect of the IMH sale documents and the October 2024 affidavit. Both are fresh evidence, post-dating the Family Court hearing. They are credible and arguably cogent on the basis submitted by Ms Cook. That is, they demonstrate the ability of the HFT to liquidate substantial assets and, arguably, point to control on the part of Mr Hair, which he submitted against in the Family Court. These documents are relevant to the issues raised on this appeal.
To the extent Ms Cook makes something of the IMH sale being in anticipation of, or in breach of, a restraining order, we cannot see the relevance of that to this appeal. We also note Mr Hair’s submission that the IMH sale may relate to his meeting obligations under the Court orders. In any event, we allow the above evidence to be adduced as it is updating and is relevant to the focal point of the appeal. We would not expect, however, to see further applications to adduce updating evidence of this sort.
Mr Hair’s application
As noted above, Mr Hair applies to adduce further evidence only if Ms Cook’s application for leave to adduce further evidence is granted. Consistent with that approach and with the principles stated above, we will allow only such evidence as is strictly in reply.
Mr Hair applies to adduce affidavits by himself and his accountant Mr Sean Parsons, both dated 24 January 2025, addressing the above matters and particularly the purpose, status and value of the $3.25 million loan.
The IMH sale and the payments referred to in the October 2024 affidavit are not matters of dispute. We see no need for evidence in reply in those regards. We also note that the October 2024 affidavit is already part of the Family Court record, albeit filed in relation to an application for restraining orders in the relationship property proceeding.
In terms of the $3.25 million loan, Mr Hair argues that, although the MT accounts list the loan as “Ian Hair - Settlor Loan”, it did not involve an advance from him personally. Rather, as settlor of the MT he facilitated the loan. Ironically, Mr Parsons deposes that the liability was recorded to “ensure [the] financial position of the [MT] was correctly reported”. He further swears that although the MT accounts “appear to suggest” Mr Hair lent $3.25 million to the MT to purchase the Takapuna property, he did not. As noted above, Mr Hair says that Ms Cook’s former counsel was aware of the financing arrangements and that is why no issue was taken by her previously. He suggests the application for leave is a change in litigation strategy on the part of Ms Cook. Whatever the position, as we have said, the loan arrangements should have been fully explained in the context of Mr Hair’s affidavit of assets and liabilities.
Given we are allowing the loan evidence to be adduced, it is in the interests of justice that we grant leave for Mr Hair to adduce Mr Parsons’ affidavit. However, we see no need for Mr Hair to also give evidence in this regard. He deposes in any event that he is relying on advice received from Mr Parsons. We note Mr Parson’s evidence may also be relevant to Ms Cook’s argument as to the interrelationship between Mr Hair and the trusts. Any documents in support of Mr Parsons’ evidence that are not already available to Ms Cook, must be supplied to her.
Except as expressly granted, Mr Hair’s application is declined. The other evidence Mr Hair seeks to adduce is either repetitive, not cogent, or in the case of the valuation evidence, not credible, there being no affidavit from the valuer, nor any expertise established. We note further that unless agreement is reached, or matters become clear on the record, it will not be possible to resolve the status or value of the loan asset in the context of the appeal in any event.
We also decline leave to file any evidence in reply on the part of Ms Cook. The evidence we have allowed in is limited and, beyond that, the parties will be able to make submissions in the usual way.
Costs are reserved, to be determined when the appeal is decided, in accordance with usual practice.[19]
Result
[19]Court of Appeal (Civil) Rules 2005, rr 53GA(1) and 53G(3).
The respondent’s application to adduce further evidence is granted on the basis set out in [14] and [16].
The appellant’s application to adduce further evidence is granted in part, on the basis set out in [22]. The application is otherwise declined.
Costs are reserved pending determination of the appeal.
Solicitors:
Dyer Whitechurch, Auckland for Appellant
Wynn Williams, Christchurch for Respondent
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