Hutchins v Edwards HC Tauranga CIV-2011-470-79 - [2011] NZHC 675

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2011-470-79

UNDER the Property (Relationships) Act 1976

IN THE MATTER OF an appeal against the decision in the Waihi
Family Court

BETWEEN MICHELLE KAY HUTCHINS Appellant

ANDGARRY DONALD EDWARDS Respondent

Appearances: D Hollings QC for the Appellant
C Bormans for the Respondent

Judgment: 21 June 2011

Reasons: 23 June 2011

REASONS FOR JUDGMENT OF ELLIS J (Application by Appellant to adduce further evidence on appeal Application by Respondent for adjournment)

Solicitors: Holland Becket, Private Bag 12011, Tauranga 3143
Fortune Manning, PO Box 4139, Auckland 1140

Counsel: DAT Hollings QC, Bankside Chambers, 88 Shortland Street, Auckland 1140
C R Pidgeon QC, PO Box 105924, Auckland 1143.

HUTCHINS V EDWARDS HC TAU CIV-2011-470-79 21 June 2011

[1] Ms Hutchins has appealed a decision of the Family Court at Tauranga in relation to the division of relationship property under the Property (Relationships) Act 1976 (the PRA). She has also sought to adduce further evidence in the appeal. That application was opposed by her former partner, Mr Edwards.

[2] This judgment records the reasons for decisions made by me yesterday in relation to that application and in relation to an application for adjournment of the hearing of the substantive appeal that was made by counsel for the respondent.

Reasons for adjournment

[3] On 17 May 2011 Keane J ordered that the application to adduce further evidence be heard together with Ms Hutchings’ substantive appeal. At that point the earliest available hearing date was 20 July 2011 with alternative dates available in September and November 2011.

[4] At relatively short notice, however, the hearing of the application and the appeal was set down for hearing on Tuesday 21 June and Wednesday 22 June 2011 before me. The submissions of each of the parties were filed and served in accordance with the timetable orders that had been made by consent, on 8 and
17 June respectively.

[5] However on the evening of Sunday 19 June 2011 Mr Pidgeon QC (who has acted for the respondent throughout the rather protracted proceedings in the Family Court) was unexpectedly taken ill and admitted to hospital in Auckland, where he remains. That turn of events understandably resulted in a request by the respondent for an adjournment of the hearing.

[6] The request for an adjournment was, however, opposed by Ms Hollings QC who maintained that the respondent’s position could more than adequately be advanced by his instructing solicitor Ms Bormans (a litigation partner in the Auckland firm Fortune Manning) who has also been involved in the matter throughout.

[7] Although I was sympathetic to the respondent’s position, the immediate reality with which I was faced was that (after taking into account Ms Hollings’ availability) another firm one day fixture in this Court, the Rotorua High Court or the Hamilton High Court is now not possible until next year. In circumstances where the litigation between the parties has already been on foot for a period that is longer than
the duration of…

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 Hutchins v Edwards HC Tauranga CIV-2011-470-79

Details

AGLC: Hutchins v Edwards HC Tauranga CIV-2011-470-79 [2011] NZHC 675
Case: [2011] NZHC 675
Decision Date: 21 June 2011

CaseChat Overview and Summary

Michelle Hutchins appeals a decision of the Family Court at Tauranga in relation to the division of relationship property under the Property (Relationships) Act 1976 (PRA). She also sought to adduce further evidence in the appeal, which was opposed by her former partner, Garry Edwards. This judgment records the reasons for decisions made in relation to that application and in relation to an application for adjournment of the hearing of the substantive appeal made by counsel for the respondent. On the evening of Sunday 19 June 2011 Mr Pidgeon QC, counsel for the respondent, was unexpectedly taken ill and admitted to hospital in Auckland, where he remains. That turn of events understandably resulted in a request by the respondent for an adjournment of the hearing. The request for an adjournment was, however, opposed by Ms Hollings QC who maintained that the respondent’s position could more than adequately be advanced by his instructing solicitor Ms Bormans who has also been involved in the matter throughout. I declined the request for an adjournment. I considered that the outcome of the application to adduce further evidence might have an effect on whether or not the substantive appeal should be heard today. In particular, if the application were granted, Mr Edwards would probably in any event need to be given an opportunity himself to file further evidence. I also wished to have an opportunity further to consider the new matters raised by Ms Bormans before requiring her to present the respondents’ submissions in the substantive appeal. I therefore told counsel that the issue of the adjournment of that appeal could be deferred until I had made a decision on the evidence issue. The hearing of the further evidence application lasted most of the morning. I formed the view that the application should be granted. I considered that s 39B(3) expressly permits that this court may, in an appeal, rehear evidence or receive further evidence “if the interests of justice so require”. There is authority to the effect that this provision loosens somewhat the usual strictures pertaining to the admission of further evidence in general appeals. This somewhat more liberal approach to the admission of further evidence on appeal is, I think, supported by the wider objects of the PRA and the nature of proceedings brought under it. The desirability of a complete and accurate picture being before the Court is at least implicit in the Court of Appeal’s endorsement in M v B of the statement made by the authors of Fisher on Matrimonial and Relationship Property at [19.23] that: The role of the Courts under the Property (Relationships) Act is to some degree an inquisitorial one to do justice between the parties rather than to consider a claim in a strictly adversarial context. This is reflected in the principal objects of the Act … suggesting an even-handed division between the spouses or de facto partners rather than an evaluation of a claim by one. I also accept that there may be some kind of presumption that the interests of justice will not usually demand the admission of new evidence on appeal in circumstances where that evidence was available at the time of the first instance hearing. But there are cases in which justice requires that presumption be overridden. In the present case there is no doubt that Ms Hutchins seeks to make new legal arguments in the appeal. For the reasons already given I do not think she is precluded from doing so. I do not intend to examine the difficulties of those new arguments here. The third (s 20E) argument may, however, be more tenable. I accept that granting the application may give rise to Mr Edwards himself wishing to adduce further evidence in reply. However, my assessment is that any such evidence should not be extensive. I make an order permitting the evidence annexed to Ms Hutchins’ affidavit of 26 April 2011 to be adduced in the appeal accordingly.

Orders