Harrison v Harrison

[2009] NZCA 580

IN THE COURT OF APPEAL OF NEW ZEALAND

CA767/2008
[2009] NZCA 580

BETWEENCHRISTINE ANN HARRISON

Applicant

ANDPAUL ANTHONY HARRISON

Respondent

CA645/2009

AND BETWEEN  PAUL ANTHONY HARRISON

Applicant

ANDCHRISTINE ANN HARRISON

Respondent

Hearing:17 November 2009

Court:Glazebrook, Chambers and Baragwanath JJ

Counsel:R C Knight for Applicant in CA767/2008 and Respondent in CA645/2009

D K Wilson for Respondent in CA767/2008 and Applicant in CA645/2009

Judgment:10 December 2009 at 4.00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is dismissed and the stay is lifted.

BMr Harrison must pay to Mrs Harrison costs for a standard application on a Band A basis plus usual disbursements.

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REASONS OF THE COURT

(Given by Glazebrook J)

Background

[1]        The parties are in the throes of a relationship property dispute.  On 18 September 2008 Fogarty J made an order requiring Mr Harrison to make an interim distribution of $300,000 of relationship property to Mrs Harrison.

[2]        On 17 February 2009 this Court granted special leave to appeal against Fogarty J’s decision.  It also granted a stay of the interim order made in the High Court pending hearing of the appeal, provided two payments of $75,000 were made to Mrs Harrison.  These payments have been made.

[3]        Mr Harrison has taken no steps to prosecute the appeal.  Instead, he has been trying to settle the substantive relationship property dispute.  Although that was not the case at the time of the special leave hearing in February, Mr Harrison now accepts that Mrs Harrison is entitled to a further $1.8 million.  Mrs Harrison, however, does not accept Mr Harrison’s valuation of the shares that make up a large part of the relationship property.  She considers it seriously understates the value of those shares.

[4]        On 26 August 2009 Mrs Harrison applied for the stay to be lifted on the basis that Mr Harrison has taken no steps to prosecute the appeal. 

[5]        Mr Harrison does not wish to continue with the appeal but wants the stay to remain in place until the substantive relationship property dispute is settled.  If the Court lifts the stay, then (reluctantly) he wishes to pursue the appeal.  An application to extend the time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 was filed on 5 October 2009.

Discussion

[6]        There can be no question of leaving the stay in place if the appeal is not to be pursued.  The stay was, after all, only pending appeal.  The question therefore is whether an extension of time to appeal should be granted to Mr Harrison.

[7]        In our view, there is no adequate excuse for Mr Harrison’s delay in prosecuting the appeal against Fogarty J’s decision.  While his wish to settle the substantive relationship property dispute is laudable, this does not provide an adequate reason for not pursuing the appeal.  The fact is that Mr Harrison decided that he did not wish to continue with the appeal.  Further, as Mr Harrison accepts that Mrs Harrison is entitled to a further $1.8 million, there can be no objection to an interim distribution of $300,000.  The appeal is therefore hopeless.  There may be some issue relating to the funding of the interim payment (given the existence of a trust which holds the bulk of the relationship property).

[8]        Mrs Harrison submits that the question of funding should not be an issue as Mr Harrison has ample assets and income held in his personal name from which he could make the interim payment.  She has, however, since the hearing, agreed to a mortgage being taken out by the trustees to fund the interim payment to her, provided certain conditions are met, including that Mr Harrison is responsible for the mortgage payments.  We understood at the hearing that this had been a solution earlier suggested by Mr Harrison.

[9]        Mr Harrison, by memorandum of 4 December 2009, now says that he cannot fund the mortgage payments but he provided no statement of assets and liabilities or of income and outgoings to back up that assertion.  He suggests that the payment to Mrs Harrison should instead be funded through the sale of shares, but this is not a viable option given that there is an unresolved dispute over their value.

Result and costs

[10]       For the above reasons, Mr Harrison’s application for an extension of time to appeal is dismissed and the stay lifted.

[11]       Mrs Harrison should, however, co-operate with the giving of a mortgage if Mr Harrison agrees to the conditions suggested by her in her memorandum to the Court dated 25 November 2009.

[12]       Mr Harrison must pay to Mrs Harrison costs for a standard application on a Band A basis plus usual disbursements.

Solicitors:

Raymond S Walker, Solicitors, Auckland for Applicant

Taylor Grant Tesiram, Auckland for Respondent