JHM v GPM HC Timaru CIV 2009-476-428

[2010] NZHC 1211

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

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2009-476-000428

BETWEEN  JHM Appellant

AND  GPM

First Respondent

ANDGJC & CV TRUSTEES LIMITED Second Respondents

Hearing:         19 July 2010

Appearances: E J Hudson for Appellant (By Telephone) S Saunderson-Warner(By Telephone) GPM (In Person)

Judgment:      19 July 2010

JUDGMENT (NO. 3) OF FOGARTY J

[1]      The judgment of this Court on 5 March this year dismissed an appeal from a judgment of Judge J J Moran of the Family Court dated 5 August 2009.   That judgment has been sealed fixing the quantum.  The District Court judgment has not been enforced following the dismissal of the appeal, for two reasons essentially.  The first reason is that since that judgment GPM has pursued the question of entitlement to some portion of JHM’s entitlement to a Norwegian Seamen’s pension.   That entitlement was raised prior to the hearing on appeal and, by the first judgment dated

1 March 2010, was set to one side and was allowed to be pursued beyond the

judgment.

JHM V GPM AND ANOR HC TIM CIV 2009-476-000428 19 July 2010

[2]      I had hoped that I would be able to resolve that issue at a minimum of cost to the parties without the matter being sent back to the Family Court.   That has not proved possible because although I have had strong and clear submissions from Mr Hudson  to  the effect  that  GPM’s  entitlement  can  be no  more than  half  her husband’s contributions to the scheme at the date of separation, I am not sure that is the correct test measured against the language of s 8(1)(i).  I am not expressing any view on it.  It is simply an aspect of the law of the Property (Relationships) Act 1976 which I have not had professional experience in dealing with.   But I think it is a subject that is best now returned to the specialist jurisdiction of the Family Court to be completed.

[3]      Accordingly, I am referring that matter back to the Family Court.

[4]      The second issue is the prospect that there might be some other off-shore bank account containing relationship property.   Mr Hudson’s argument is that the prospect of there being any other off-shore bank account other than the Lloyd’s bank account which was the subject of the proceedings was never raised prior to the final hearing.  He has attached to his memoranda many minutes from the Family Court.

[5]      GPM argues to the contrary and partly argues that on at least one telephone conference what she was saying was not heard due to a faulty microphone.

[6]      I am  satisfied  that  at  the  hearing before Judge  Moran  the  question  of a concealed off-shore account, distinct from the off-shore account that was the subject of proceedings, was not canvassed before the Judge.  On the ordinary principles of res judicata that judgment stands unless there has been some deceit in the affidavit of assets and liabilities by the respondent.  No judgment can stand in the face of any proof of deceit at a later time.

[7]      I have considerable doubt as to whether GPM can advance this point but I am also sending this point back to the Family Court so that she can pursue it there if she wants to, or, if she obtains legal advice, if she gets advice that it is not worth pursuing.   However, I am of the view that at this point, which is essentially that the

judgment was to a degree obtained by deceit, it is at best only a hope and is not sufficient to displace the entitlement for the judgment to be enforced.

[8]      I then turn to the question of the enforcement of the judgment.  There is an outstanding issue in respect of the pension fund.   Mr Hudson for his client has acknowledged and, indeed, has offered a small settlement in that regard.  Mr Hudson has properly suggested that a sum of $20,000 be paid in escrow in the trust account of Aspinall Joel pending final resolution of this.  I should say that there is $70,000 held in the trust account of Aspinall Joel.  Aspinall Joel were the solicitors for GPM until recently when their staff solicitor, Mr Stratford, left the firm.  It is appropriate that the $20,000 remain in their trust account where it will be, I am sure, placed in an interest bearing account.

[9]      Accordingly, the judgment obtained in the Family Court and sealed in the Family Court can now be enforced save only for the deduction of $20,000 being that sum that I referred to which should be held in escrow.

[10]     There will be no order for costs on these proceedings. [Judge addresses GPM]

Solicitors:

Nielsen Law, Hamilton, for Appellant Aspinall Joel, Dunedin, for Respondents cc: Appellant (GPM)