K v K - [2022] NZHC 1895

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-15

[2022] NZHC 1895

BETWEEN
K

Appellant

AND

K

Respondent

Hearing: On the papers

Appearances:

D J Patterson for the Appellant C J Nicholls for the Respondent

Judgment:

3 August 2022

JUDGMENT OF COOKE J

(Leave to appeal)

[1] By application dated 5 July 2022 the appellant seeks leave to appeal to the Court of Appeal from the decision of this Court1 upholding a decision of the Family Court.2 Leave is opposed. It has been agreed that the application for leave can be determined on the papers based on the written submissions filed.

[2] The proposed appeal relates to a sale order made by the Family Court under s 33 of the Property (Relationships) Act 1976 (the Act), and an earlier order made in 2014 dividing the matrimonial property after the parties had reached a settlement to which the sale order relates. Under s 39 of the Act there is a right to appeal to the High Court and under s 39B there is a potential further appeal to the Court of Appeal in accordance with s 60 of the Senior Courts Act 2016 which provides:

1 K v K [2022] NZHC 1301.
2 K v K [2021] NZFC 11752.

K v K [2022] NZHC 1895 [3 August 2022]

60 Appeals against decisions of High Court on appeal from District Court, Family Court, or Youth Court

(1) The decision of the High Court on appeal from the District Court, the Family Court, or the Youth Court is final unless a party, on application, obtains leave to appeal against the decision to the Court of Appeal.

…

[3] In Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd the Court of Appeal described the approach to the grant of leave in the following terms:3

… The test … is well established. The case normally cited is Waller v Hider
[1998] 1 NZLR 412, where this court described the test as follows (at 413):

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 outweigh the cost and delay of the further appeal: Rutherfurd v Waite [1923] GLR 34; Cuff v Broadlands Finance Limited [1987] 2 NZLR 343 at pp 346-347.

This court went on to bemoan the fact that, “notwithstanding frequent reminders of the test, applications continue to be made which have little or no prospect of success”. The court, after noting that “the scarce time and resources of the High Court and of this Court are not to be wasted”, added (at 413):

Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law…

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 K v K

Details

AGLC: K v K [2022] NZHC 1895
Case: [2022] NZHC 1895
Decision Date: 3 August 2022

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, heard an application for leave to appeal from a decision of the Family Court upheld by the High Court in a case involving a dispute over the sale of matrimonial property. The appellant sought to appeal the decision to the Court of Appeal, arguing that the Family Court and the High Court had erred in their rulings. The application for leave to appeal was opposed, and the matter was decided on the written submissions filed by the parties.

The primary legal issue was whether the appellant was entitled to leave to appeal to the Court of Appeal from the decision of the High Court, which had upheld a decision of the Family Court. The court considered whether the appeal raised some question of law or fact capable of serious argument and whether the appeal involved an interest of sufficient importance to warrant further litigation. The court also considered the principle of finality in relationship property matters and the potential for further conflict and stress for the parties and their children if the matter were to be further litigated.

The High Court declined to grant leave to appeal, finding that the appeal did not meet the required standards. The court found that the appellant's arguments lacked merit and that there were no important issues of law involved. The court also considered the significant delay in bringing the appeal, as the parties had reached an agreed settlement in 2014. The court concluded that the decision of the High Court should be final and that further litigation would have adverse effects on the parties and their children.

The court declined to grant leave to appeal and ordered that the respondent would likely be entitled to costs of defending the application on a 2B basis. The costs could be fixed by the court if not agreed upon by the parties.

Orders