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 that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[4]                   Against that background I have little hesitation in declining leave to appeal. When dismissing the appeal against the sale order, and declining the application for leave to appeal the earlier order dividing the matrimonial property, Simon France J held:4

Separately from the lack of merit in the proposed appeal, serious concerns arise with the proposition of allowing an appeal in a relationship property matter so far out of time. As noted, the parties were legally represented and an agreement reached. No flaw in that process has been suggested or identified. Rather, there is now dissatisfaction with how the terms of the agreement have worked out over time. For reasons given, I consider those concerns are not as

3      Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [30]–[31].

4      K v K, above n 1, at [37].

clear cut as suggested, but separately the principle of finality is important. There is no sound explanation for a delay of now eight years and leave to appeal out of time is declined.

[5]                   It is quite clear that the standards for the grant of leave are not met. The appellant is seeking to re-open an agreed settlement of matrimonial property issues reached in 2014, or at least contend that the settlement should not now be able to be implemented because of an alleged estopple. The Family Court, and this Court have rejected her contentions as a matter of fact. There is no important issue of law involved. The decision of this Court should be final. I also agree with Mr Nicholls’ submission that there are significant adverse effects in terms of further conflict and stress, including indirectly for the children, in allowing this matter to be further litigated.5

[6]                   For these reasons leave to appeal is declined. The respondent will likely be entitled to the costs of defending this application on a 2B basis which can be fixed by me if not agreed.

Cooke J

Solicitors:
Chapman Tripp, Wellington for the Appellant

5      See Property (Relationships) Act 1976, s 26.