Jackman v Clague - [2016] NZHC 507

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 Respondent

Judgment:

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…

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.

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Details

Case: [2016] NZHC 507
Decision Date: 23 March 2016

CaseChat Overview and Summary

The appeal in this case was brought by Jeanne Jackman against Peter Clague, concerning the division of property following their short-lived marriage. The appeal followed a decision in the Family Court, which was subsequently upheld by the High Court. The central issue was the division of relationship property in accordance with the Property (Relationships) Act 1976. Jackman contended that the Family Court and High Court had erred by not adequately considering her non-monetary contributions to the relationship and by not applying a specific four-stage assessment approach in determining the value of contributions. The High Court had previously considered whether there was an error in the Family Court's approach and concluded that the division of property in the ratio of 87.5 per cent to Clague and 12.5 per cent to Jackman was appropriate. Jackman sought leave to appeal this decision to the Court of Appeal.

The court examined whether there were any questions of law or fact that could justify a further appeal. In relation to the alleged error of law regarding non-monetary contributions, the court noted that both the Family Court and High Court had indeed considered these contributions. The High Court had made it clear that non-monetary contributions were of lesser significance compared to monetary contributions but were not ignored entirely. The court held that Jackman's argument regarding the non-monetary contributions was not seriously arguable given the detailed consideration already given by the High Court. Regarding the four-stage assessment approach, the court found that while some High Court judgments had adopted such an approach, it was not mandatory. The Court of Appeal had consistently held that a qualitative, overall assessment of contributions was required. Therefore, the court concluded that there was no reasonably arguable error of law. Lastly, the court observed that the factual findings regarding the nature and extent of the parties' contributions had already been thoroughly considered by both the Family Court and High Court. Given the need for finality and the extensive use of court resources, the court refused Jackman's application for leave to appeal.

The court also reserved costs on a tentative basis, expecting them to follow the event on a 2B basis, and outlined the procedure for any disagreement over costs.

Orders