Jack v Jack - [2014] NZHC 2502

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-4816

CIV-2014-485-2663 [2014] NZHC 2502

UNDER
the Property (Relationships) Act 1976 and

the Family Proceedings Act 1980

IN THE MATTER

of an appeal pursuant to s 39 of the
Property (Relationships) Act 1976

BETWEEN

JACK Appellant

AND

JACK Respondent

Hearing: 15 September 2014

Counsel:

M W Vickerman and J H Rennie for Appellant
J L Forrest for Respondent

Judgment:

13 October 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 13 October 2014 at 4.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
William Rennie, Wellington for Appellant
DAC Beachcroft New Zealand, Wellington for Respondent

JACK v JACK [2014] NZHC 2502 [13 October 2014]

Introduction

[1] Judgment in this case was issued on 1 July 2014. In that judgment I upheld Judge Grace’s decision in the Family Court, determining the parties’ entitlements under the Property (Relationships) Act 1976 (the Act). The outcome of both judgments was to confirm Mrs Jack’s entitlement as 70 per cent of the net relationship property pool in existence at the time of separation. An award of compensation to Mr Jack under s 18B of the Act was declined. As a result, Mr Jack became liable for judgment in the sum of $418,954.53.

[2] Mr Jack has filed an application for leave to appeal to the Court of Appeal, an application for stay of execution of judgment pending the appeal to the Court of Appeal being heard, and an appeal against the order of costs made by the Family Court. Costs arising from the appeal to this Court have not yet been determined.

[3] This decision deals with each of these matters in turn.

Appeal against Family Court costs

[4] Judge Grace dealt with the issue of costs in a judgment released on

3 February 2014, in which he awarded costs against Mr Jack on a category 2B basis for preliminary matters and on a 3C basis for the hearing, with an uplift of 50 per cent for all steps in the proceeding. The Judge also certified for second counsel and ordered Mr Jack to pay reasonable disbursements (not including the hearing fee, which was halved between the parties).

[5] An appeal against an award of costs is an appeal against an exercise of discretion. The appellant must show that the Judge erred in law, took into account irrelevant factors, failed to take into account relevant factors or was plainly wrong.1

[6] Mr Jack challenged Judge Grace’s decision to award costs in favour of

Mrs Jack, challenged the categorisation and banding of the proceedings, the uplift of

50 per cent and the certification of junior counsel.

1 May v May [1982] 1 NZFLR 165 (CA); Austin, Nichols & Co Inc v Stichting Lodestar [2007]…

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 Jack v Jack

Details

AGLC: Jack v Jack [2014] NZHC 2502
Case: [2014] NZHC 2502
Decision Date: 13 October 2014

CaseChat Overview and Summary

Jack v Jack involved a dispute between the parties over their respective entitlements under the Property (Relationships) Act 1976. The appeal before the Court was against the Family Court's decision regarding the parties' relationship property, the award of costs, and an order for Mr Jack to pay Mrs Jack a sum of money. The appeal also included an application for leave to appeal to the Court of Appeal and an application for a stay of execution of judgment.

The legal issues before the Court included whether the Family Court's award of costs to Mrs Jack was appropriate, whether the classification, banding, and uplift of costs were justified, and whether certification for second counsel was warranted. The Court also had to determine whether the application for leave to appeal and the application for a stay of execution of judgment should be granted.

In its judgment, the Court found that the award of costs to Mrs Jack was appropriate as costs follow the event, and in this case, Mrs Jack was the successful party. The Court upheld the classification of the hearing as category 3 but quashed the uplift of 50 per cent and the certification of junior counsel. The Court granted the application for leave to appeal, finding that the proposed grounds of appeal were capable of serious argument and involved both public and private interests of sufficient importance. The Court also granted the application for a stay of execution of judgment, ordering Mr Jack to pay the balance of the Family Court judgment, interest, and costs into a bank account pending determination of the appeal to the Court of Appeal.

In conclusion, the Court allowed the appeal against the Family Court's order for costs and quashed the uplift of 50 per cent and the certification of junior counsel. The application for leave to appeal and the application for a stay of execution of judgment were also granted. Costs relating to the application for leave to appeal and the application for a stay of execution of judgment were awarded to Mr Jack on a 2B scale.

Orders