Jackman v Clague
[2016] NZHC 507
•23 March 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-000685 [2016] NZHC 507
BETWEEN JEANNE JACKMAN
Appellant
AND
PETER LAWRENCE CLAGUE Respondent
Hearing: On the papers Counsel:
D R I Gay for the Appellant
C A O'Donnell for the RespondentJudgment:
23 March 2016
JUDGMENT OF NATION J
Introduction
[1] The appellant and respondent were in a relationship of short duration, two years and five months. They lived together between November 2009 and 20 April
2012. They were married on 10 July 2010. This being a marriage of short duration, the parties’ entitlements to relationship property were to be assessed on the basis of their respective contributions to the relationship.1
[2] In a judgment of the Family Court of 5 March 2015, Judge Rogers held that Ms Jackman was entitled to retain or be paid property worth $144,040.2 Although the Judge did not say her entitlement was to a 12.5 per cent of relationship property, the effect of her judgment was to entitle Ms Jackman to a 12.5 per cent share of
relationship property. Ms Jackman appealed to the High Court.
1 Property (Relationships) Act 1976, s 14.
2 JJ v CPL [2015] NZFC 1426.
JACKMAN v CLAGUE [2016] NZHC 507 [23 March 2016]
[3] In a judgment of 23 September 2015, I upheld the judgment given in the Family Court.3 Firstly, on the basis that the Judge had not been in error in the way she assessed Ms Jackman’s entitlement. Secondly, given the appeal proceeded by way of a rehearing, on my own assessment of the evidence, I agreed with the judgment reached in the Family Court. I considered, in the particular circumstances of this case, a sharing in the proportions of 87.5 per cent to Mr Clague and 12.5 per
cent to Ms Jackman, was appropriate and reflected both the monetary and non- monetary contributions which each had made to the relationship.
Legal test for granting leave
[4] Section 67 of the Judicature Act 1908 governs Ms Jackman’s application.4
This provision states that the decision of the High Court on appeal from an inferior court is final, unless the applicant obtains leave to appeal against that decision.
[5] The principles for determining whether leave ought to be granted are well settled:5
(a) The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to out-weight the cost and delay of the further appeal.
(b) It is possible for a question of fact to found an appeal, however, it will seldom be of public importance.
(c) Not every alleged error of law is of such importance, either generally or to the parties as to justify pursuit of litigation which has already been twice considered and ruled upon by a Court.
(d) The guiding principle is the requirements of justice.
3 Jackman v Clague [2015] NZHC 2316.
4 Property (Relationships) Act 1976, s 39B.
5 Waller v Hider [1998] 1 NZLR 412 (CA) at 413-414.
[6] In submissions for the appellant, Mr Gay has indicated the appellant wishes to appeal against conclusions in the High Court that:
(a) the judgment of the Family Court Judge was not in error in failing to consider the value of non-monetary contributions when assessing the appellant’s overall entitlement;
(b) the conclusion in the High Court that the judgment in the Family Court was based on relevant evidence and the approach mandated by the Court of Appeal in Reid v Reid;6 and
(c) a division of relationship property in the proportions 87.5 per cent to
12.5 per cent appropriately reflected the contributions of the parties to their marriage relationship.
Potential questions of law
[7] The parties have the benefit of a judgment from the High Court which considered whether there had been an error in the approach adopted by the Family Court Judge. In the High Court, I also considered what the parties’ entitlements should be on my assessment of the contributions each party had made to the relationship.
[8] Mr Gay submits for Ms Jackman that she should be permitted to argue on appeal to the Court of Appeal that the Family Court and High Court made errors of law in not taking into account non-monetary contributions to the relationship. Whether or not an appeal is justified in relation to this argument must be assessed by examining the judgment given in the High Court rather than that given in the Family Court.
[9] Mr Gay argues that an appeal on this point is warranted on the premise that in the High Court “no provision was made for non-monetary contributions when assessing the overall contributions of each party to the marriage”. If that had been
the case, I would accept there could have been an error which might warrant the
6 Reid v Reid [1979] 1 NZLR 572 (CA).
Court of Appeal’s consideration of the case, although it is not normally enough to suggest simply that the High Court has been in error.7 However, the premise for seeking to advance an appeal on this basis cannot be made out given the way in which non-monetary contributions were referred to and considered in the High Court. I do not consider there can be a bona fide and serious argument that either the Family Court or the High Court failed to take into account non-monetary
contributions.
[10] I considered and discussed the parties’ non-financial contributions in some detail in my judgment.8 I discussed the monetary contributions made by the parties at paras [63] to [82] of my judgment.
[11] My judgment also discussed the Family Court’s comparative analysis of the relative significance/value of all the contributions which had been made by the parties.9 At that point, there was again a reference to Ms Jackman’s non-monetary contributions. My ultimate determination was that, in the particular circumstances and context of this marriage, the non-monetary contributions were of lesser significance than the monetary contributions. My conclusion was not that non- monetary contributions were of no value or were to be ignored altogether.
[12] Ms Jackman’s proposed argument that there was an error of law with regard to a failure to consider non-monetary contributions is, in my view, not seriously arguable given the way in which non-monetary contributions were referred to in my judgment in the High Court. It is also not a question that requires consideration by the Court of Appeal because there is no uncertainty as to what the legislation requires. Section 14 requires a Court to have regard to all contributions that are made to the relationship. The legislation makes it clear that contributions will
include non-monetary contributions.10 The Court of Appeal has previously made it
clear that, in applying s 14, all contributions should be taken into account.11
7 Waller v Hider, above n 5, at 413, affirmed in Snee v Snee [2000] NZFLR 120 (CA).
8 Jackman v Clague, above n 3, at [83]-[96], [102]-[106], [109]-[110].
9 At [41]-[44] and [54]-[56].
10 Property (Relationships) Act 1976, s 18(1)-(2).
11 Reid v Reid, above n 6; Burgess v Beaven [2010] NZCA 625, [2011] NZFLR 609 (not addressed
in the Supreme Court’s reversal: Burgess v Beaven [2012] NZSC 71, [2013] 1 NZLR 129.
[13] A second potential question of law relates to the way in which I assessed the value to be attached to the parties’ respective contributions and thus the shares to which they would ultimately be entitled.
[14] For Ms Jackman, Mr Gay wishes to argue that the contributions-based analysis, required by s 14 of the Act, must entail a four-stage assessment:12
i. an assessment of each party’s respective monetary and non-monetary contributions;
ii. an assessment as to whether and to what extent contributions of one sort (for example, monetary contributions) may be more important and attract a greater weighting than contributions of another sort;
iii. an assessment of the overall (monetary and non-monetary) contributions of one party compared to those of the other party (expressed as a percentage of the total contributions of each party to the relationship); and
iv. the application of each party’s overall contributions to the total value of
the relationship property.
[15] With such an approach, on her view as to the judgments that should have been reached on the evidence, Ms Jackman wishes to argue in the Court of Appeal that, in terms of financial contributions, she made a 13.64 per cent contribution to the combined monetary contributions to the relationship and a 50 per cent contribution to non-monetary contributions. She wishes to argue that the combined monetary contributions of the parties should be assessed as having a 60 per cent weighting in terms of the overall contributions to the marriage relationship. On that basis, Ms Jackman would claim an entitlement to $309,190 of relationship property rather than the $144,040 that she is entitled to pursuant to both the Family Court and High Court
judgments.
12 As mandated in Reid v Reid, above n 6.
[16] For the respondent, Ms O’Donnell argues that, on the evidence, even with a weighting of only 60 per cent for monetary contributions, the end result would be no different from that obtained with the approach I took in the High Court.
[17] It is correct that in the High Court I did not adopt the arithmetical approach to assessing the value of non-monetary and monetary contributions to the relationship as particular proportions of the overall contributions. With regard to each category of contributions, I did not determine the proportion in which each of the parties contributed to that particular category. I assessed the overall contributions on the basis of an overall impression.
[18] In my judgment, I referred to two High Court decisions which had adopted the approach which Mr Gay argues for.13 Ms Jackman wishes to argue that, in assessing overall contributions, Judges must adopt the approach taken by the High Court in those earlier judgments. Whether or not that is so would involve a question of law. It would arise out of the appeal but on this application the issue is whether it is an issue of such importance that the question warrants consideration by the Court of Appeal.
[19] I do not consider that a further appeal with regard to this question is warranted. I say this, firstly, because the approach which should be taken in applying s 14 has already been considered by the Court of Appeal.14
[20] I agree with the submission of Ms O’Donnell for Mr Clague that:
The Courts have consistently observed that what is required is a qualitative assessment of the relative (combined) contributions of each spouse in the particular circumstances of their marriage. The ultimate assessment will be one of a principled overall assessment rather than a formulaic calculation.
“The overall assessment of non-monetary contributions can only be a matter
of impression.” …15
13 Jackman v Clague, above n 3, at [48], citing S v W [2006] 2 NZLR 669 (HC) and K v K HC Nelson CIV-2005-442-310, 22 August 2006.
14 Reid v Reid, above n 6; Illingworth v Illingworth [1981] 1 NZLR 1; L v P (2007) 26 FRNZ 946;
S v W, above n 13.
15 S v W, above n 13, at 700.
“At the end of the day quantification of the shares is more a matter of overall impression than of any mathematical exactitude.” – per Court of Appeal in Illingworth v Illingworth.16
“In the end the conclusion is one of impression.”17
“The appropriate division is not a matter susceptible to exact analysis or the
application of a formula” as per Asher J in L v P.18
[21] Consistent with principles articulated by the Court of Appeal, Judges in applying s 14 are entitled to consider the nature of relative contributions and the benefit and value of those contributions to the parties individually and in the context of the particular relationship with which the Court is concerned.19
[22] While I accept that there have been instances in which High Court Judges have approached their task on a formulaic basis, in neither case (cited above at [21]) has the Judge stated such an approach is mandatory. In that sense, there is not a conflict within the High Court as to how s 14 is to be applied. Even after applying the formulaic approach, MacKenzie J acknowledged that ultimately the judgment reached must be by way of overall impression.20 MacKenzie J did not consider it appropriate on appeal to further reduce the generous first instance assessment of the husband’s financial contribution, as the Judge was in a better position than the High Court “to make the assessment, which, it is clear, was necessarily a “broad brush”
one.”
[23] For these reasons, I do not consider the second alleged error of law is reasonably arguable or that it is of such importance as to warrant leave to appeal.
Questions of fact
[24] Once those two claimed errors of law have been put to one side, it is clear the appellant is seeking to appeal against judgments reached in both the Family Court and the High Court as to the nature and extent of the parties’ contributions, both
monetary and non-monetary, and then the judgment reached in both Courts as to the
16 Illingworth v Illingworth, above n 14, at 11.
17 At 16.
18 L v P, above n 14, at [99].
19 RLH v TMM [2015] NZHC 1050, [2015] NZFLR 935.
20 K v K, above n 13, at [14].
entitlements that result from those contributions. Those are determinations as to questions of fact. In this instance, there was no challenge to the factual conclusions which Judge Rogers had reached in the Family Court as to the particular circumstances of the parties’ relationship and the nature and extent of the contributions they had each made to it. The challenge was to the judgment which the Family Court Judge had come to on the basis of her factual findings. Ms Jackman is now wishing to appeal against the judgment I made in the High Court on the basis of those same factual findings.
[25] Questions of fact have now been considered carefully in both the Family Court and the High Court. In both Courts, there have been observations as to the appellant’s credibility. In the Family Court, through its specialist jurisdiction, that assessment has been made by a Judge with particular experience and knowledge of family relationships and the nature and value of the contributions that can be made to a particular relationship.
[26] The weight to be attached to the parties’ respective contributions, given the facts as established, was a matter for the Judge presiding in the Family Court and then for me in the High Court on appeal. Given the separate consideration that has been given to this by two Judges, it would be rare for the Court of Appeal to be involved in a further consideration of such factual issues.
[27] It is now nearly four years since the parties separated. There is a need for finality in litigation. Ms Jackman has already benefitted from extensive use of Court resources, not just through these relationship property proceedings but also through the private prosecution she brought against Mr Clague on which he was ultimately discharged.
[28] I thus conclude that there is no question of law or fact capable of bona fide and serious argument where there is some interest, public or private, which is of sufficient importance to outweigh the cost and delay of a further appeal.
[29] This is not a case, in my view, where the interests of justice warrant a second appeal. The application for leave to appeal is refused.
Costs
[30] Costs are reserved. On a tentative basis, I expect costs to follow the event, on a 2B basis. Should there be no agreement over this, counsel for the respondent is to file a memorandum as to what the respondent seeks. Counsel for the appellant is to file any memorandum in reply within a further 10 working days of receiving the respondent’s submissions. Each memorandum is to be no longer than three pages.
Solicitors:
Coast Legal Barristers and Solicitors, Orewa
D R I Gay, Barrister, Auckland
Tammy McLeod, Solicitor, Auckland
C A O’Donnell, Barrister, Auckland.
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