K v K

[2021] NZHC 1743

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000397

[2021] NZHC 1743

BETWEEN

K

Appellant

AND

K

Respondent

Hearing:

18 May 2021

Appearances:

Appellant self-represented

E Snedden for the Respondent

Judgment:

12 July 2021

JUDGMENT OF WALKER J

[anonymised version]

This judgment was delivered by me on 12 July 2021 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

K v K [2021] NZHC 1743 [12 July 2021]

[1]    The parties were formerly married. They have two children of the marriage, aged 18 and 15 years. They separated finally on 1 July 2015 and their marriage was dissolved on 13 March 2018. After separation, they were unable to resolve the division of their relationship property. Ms K filed proceedings in the Family Court. The substantive hearing took place over three days between 4-6 August 2020. By that time, both parties were self-represented. The Family Court Judge noted that this posed several challenges at the hearing with both parties struggling with the process.

[2]    At the hearing, Ms K advanced claims for compensation under ss 15, 18B and 18C of the Property (Relationships) Act 1976 (“PRA”). Judge R von Keisenberg delivered a comprehensive judgment on 4 December 2020.1 Mr K was ordered to pay Ms K one half of the value of the relationship property assets valued at $798,308 less

$55,000 already paid to Ms K.  In addition, he was ordered to pay compensation of

$105,586.

[3]    Although Ms K was successful in all of her claims for compensation she is dissatisfied with the quantum ordered. She filed an application in the Family Court for rehearing under r 209 of the Family Court Rules 2002. The Judge dismissed the application on the basis that she had no jurisdiction as the application had been filed out of time.2

[4]    By the time the parties were notified of the dismissal of that application, the statutory timeframe to appeal had passed. This is because the minute dated 21 January 2021 was only sent by the Family Court to the  parties on 25  February  2021.  On  10 March 2021, Ms K filed an application for leave to appeal the substantive judgment along with an appeal of the dismissal of her application for rehearing. The appeal of the re-hearing decision is brought within the required time period. Mr K opposes both.

[5]There are two issues for determination:

(a)whether the Judge erred when dismissing the application for rehearing; and

1      K v K [2020] NZFC 6638.

2      Minute of Judge R Von Keisenberg dated 21 January 2021.

(b)whether leave to appeal the substantive judgment should be granted.

Background

[6]    The parties met in 1996 and commenced a relationship in 2000. Both have children from earlier relationships. The parties commenced a de facto relationship in 2002 and married on 19 October 2003. There are two children of the marriage: “C” born 1 April 2003 now aged 18, and “V” born 28 October 2005 now aged 15.3

[7]    The parties separated for the first time in July 2011 but reconciled in April 2013. The date of final separation was held to be 1 July 2015.

[8]    In 2005 the parties signed a contracting out relationship agreement which among other things defined the home in which the family lived as the respondent’s separate property. The contracting out  agreement  was  successfully  set  aside on  28 September 2018 on application by Ms K. The result was that the home was classified as relationship property.

Family Court decision

[9]    Ms K applied for relief under the PRA for orders and adjustments under ss 15, 18B and 18C. The value of relationship property was assessed as approximately

$798,308, the bulk of which came from the family home with an agreed value of

$690,000 and various other assets mainly owned by Mr K. Ms K also acknowledged that she had received interim distributions totalling $55,000 following separation from the respondent in two tranches.4

[10]   The proceedings had an extensive history with multiple interlocutory skirmishes.5

3      The appellant commenced proceedings under the Care of Children Act 2004 in 2015 prior to separation to determine the children’s care arrangements. These were resolved in 2017 by consent orders.

4      Namely, $15,000 in 2018 and $40,000 in 2019.

5      In addition to the application to set aside the contracting out agreement, the appellant also filed several interlocutory applications including for discovery against the respondent and a third party (the Commissioner of Inland Revenue), interrogatories, notice to admit facts and an application for interim distribution.

[11]   At the conclusion of the three day hearing, the parties reached agreement on the classification, value and division of some of their assets, without prejudice to further adjustments sought. The decision of Judge von Keisenberg dealt with claims by Ms K for:

(a)compensation under s 18B in respect of:

(i)her care of the children post separation;

(ii)occupation rent owing for Mr K’s sole occupation of the family home from 22 October 2015 to the date of the hearing; and

(iii)benefits received by Mr K from sole occupation and the foregoing of her share of capital;

(b)an adjustment under s 18C for diminution in value of the family home since separation; and

(c)a lump sum payment for economic disparity under s 15.

[12]   It also addressed other incidental property matters not agreed to at the conclusion of the hearing including Ms K’s credit card debt at separation.

[13]   Ms K claimed between $128,920 and $284,920 post-separation compensation under s 18B.6 The primary claim under this head was for occupation rent owed for Mr K’s sole occupation of the family home, rent free, since 22 October 2015. Having regard to the approximate sum of $500 per week as a fair rent in Auckland, the Judge assessed the total amount owed by Mr K under this head to be $52,500 after deductions for Mr K’s payment of rates and insurance.

[14]   Ms K claimed that following separation in 2015, Mr K deliberately failed to maintain the family home. She accordingly claimed compensation for dissipation of

6      The Judge recorded that Ms K’s submissions in relation to her various s 18B claims were lengthy and at times difficult to follow but distilled were claims between these two sums.

relationship property under s 18C of up to $95,000. The Judge awarded $20,000 to Ms K.

[15]Ms K’s economic disparity claim under s 15 sought compensation totalling

$138,000. The Judge was satisfied that a just result in the circumstances equated to a compensatory payment from Mr K to Ms K in the sum of $30,000.

[16]Other incidental orders were made in Ms K’s favour.

Relevant timeframes

[17]There are three timeframes of relevance here:

(a)the time limit for appealing the judgment which is 20 working days beginning 7 December 2020;7

(b)the time limit for applying for a rehearing of the Family Court judgment which is 28 days from 5 December 2020;8 and

(c)the time limit to appeal the rehearing determination which is 20 working days from 25 February 2021.9

[18]   The High Court Rules 2016 provide that in addition to public holidays there are no working days between 25 December and 15 January each year.10 As a result, Ms K had:

(a)until the end of 25 January 2021 to appeal the substantive Family Court judgment; and

7      High Court Rules 2016, r 20.4(2)(b) specifies the 20 working day time limit. The Judgment is dated 4 December 2020, which was a Friday, with the following working day being Monday 7 December 2020.

8      Family Court Rules 2002, s 209(3). The judgment is delivered 4 December 2020 so the first day of the 28 period is 5 December 2020. The period expired at the end of 1 January 2021 but the Family Court was only open for filing from 5 January 2021.

9      High Court Rules, r 20.4(2)(b).

10 See r 1.3.

(b)until the end of 5 January 2021 to apply to the Family Court for a rehearing.11

[19]   In fact, she applied for a rehearing on 7 January 2021 being two days late and filed application for leave to  appeal  the  substantive  Family  Court  judgment  on 10 March 2021, being 30 working days outside the statutory time frame for an appeal and some 13 days after receiving the minute dealing with the rehearing application.

Appeal of dismissal of application for rehearing

[20]   The rehearing application was dismissed by the Judge as out of time. Ms K now appeals that determination. Her appeal on this aspect is within the required timeframe.12

[21]   It is clear, and I so find, that Ms K filed the application for rehearing out of time. As a matter of interpretation, the 28 day period specified in r 209 must include weekends and public holidays which would otherwise have been excluded had the provision specified “working days”. That is a sensible reading of the provision and in my view the only one available to this Court.

[22]   Ms K submits that r 17 nevertheless provides that a failure to comply with the time limit “must be treated as an irregularity” and “does not nullify” the proceedings, any step taken in the proceedings or any document, judgment, or order in the proceedings.13 Mr K counters that r 17 cannot be used to keep an application for rehearing alive after expiry of the 28 day period as it is no longer “a stage in the proceedings”.14

[23]   It is debateable whether r 17(1) applies or whether it should be confined as Mr K argued. Regardless, I do not accept that Judge von Keisenberg lacked jurisdiction to consider the application for rehearing in this case.

11 Rule 1.22 of the District Court Rules 2014 states that: “When the time for doing any act at a  registry of the court expires on a day on which the registry is closed, so that that act cannot be done on that day, the act is in time if done on the next day on which that registry is open.”

12     See the minute of Powell J dated 7 May 2021.

13     Family Court Rules, r 17(1).

14     Aldridge-Neal v Neal FC Blenheim FAM-2004-006-000053, 22 August 2008 at [49].

[24]   I consider that the Family Court Rules specifically allow for an extension of the time required for filing documents under r 132. It therefore becomes unnecessary to explore that issue of interpretation of r 17 as there is a more directly relevant provision.15

[25]Rule 132 reads:

132     Changing times by which things to be done

(1)This rule applies only to a time fixed by these rules, or fixed by an order, for—

(a)    taking a step in the proceedings; or

(b)    filing a document; or

(c)    giving or serving a notice; or

(d)    the doing of an act.

…

(3)An order extending the time may be made before or after the time has expired by—

(a)    a Judge on such terms and conditions (if any) the Judge thinks fit if—

(i)each person or party affected consents; or

(ii)whether or not an interlocutory application for the purpose is filed, the Judge is satisfied that it is in the interests of justice to make the order; or

(b)    a Registrar on such terms and conditions (if any) the Registrar thinks fit if—

(i)each person or party affected consents; or

(ii)an interlocutory application for the purpose is filed and the Registrar is satisfied that it is in the interests of justice to make the order.

(4)An order varying an order made under subclause (2) or (3) may be made by a Judge or Registrar on such terms and conditions (if any) the Judge or Registrar thinks fit if—

(a)    each person or party affected consents; or

15     Ms K did not rely on this rule as she was under the misapprehension that the period at issue was working days only. Thus, r 132 was not referred to the Judge.

(b)    an interlocutory application for the purpose is filed (whether before or after the time has expired) and the Judge or Registrar considers it appropriate in the circumstances.

(5)An interlocutory application filed under this rule may be made without notice.

(6)This rule is subject to every Act and any other of these rules.

[26]   In Robinson v Robinson, Judge Maude considered that r 132 could apply in respect of a rehearing application.16 The applicant husband in that case applied for an order allowing the filing out of time of an application for rehearing. The Judge allowed the application for leave to proceed:17

In my view, it would be quite untenable for it not to be possible for an application for leave to file out of time to be made and considered on its merits in the same way that an application for leave to file an appeal out of time can be made. Each application is considered on its merits and if unmerited is declined.

[27]   That conclusion was also adopted in the later decision of Attwood v Martin, where Judge Wills considered that rehearing of a Family Court decision should be granted despite the opposition of a non-party.18 In that case, the Judge found a miscarriage of justice which justified “both leave being granted to extend the time for making an application for rehearing and the grant of the rehearing itself”.19 It was further necessary to vary the decision in question to avoid a miscarriage of justice.20

[28]   This line of cases represents a principled interpretation of r 132. There is nothing in the wording of the provision which suggests that it should not apply in respect of a rehearing application, or after the expiry of the 28 day period specified in r 209. In fact, the language chosen is particularly broad and encompasses any time fixed by the Rules for:

(a)taking a step in the proceedings; or

(b)filing a document; or

(c)giving or serving a notice; or

16     Robinson v Robinson [2010] NZFLR 729.

17 At [12].

18     Attwood v Martin [2015] NZFC 5111 at [16].

19 At [27].

20 At [38].

(d)the doing of an act.

[29]   I  find  accordingly  that  Judge  von  Keisenberg  had  the  ability  under       r 132(3)(a)(ii) to extend the time required for filing an application for rehearing.

[30]   In this case, I consider that there are at least grounds to extend time for the application for rehearing to be determined on its merits but I make no comment on the merits of the application itself. The reason given for Ms K’s late filing of the rehearing application was a misunderstanding of the 28 day timeframe specified in r 209 and, in particular, whether that period included the Christmas period between 25 December and 15 January.

[31]   As indicated above, I agree that the 28 day timeframe must encompass weekends and public holidays including the Christmas period. However, I also accept that it would not be unreasonable for a lay person to have assumed that this period did not include the Christmas period. I am mindful in reaching this conclusion that the time periods specified in the High Court Rules for filing an application for leave to appeal and, where a party has a right of appeal, for bringing that appeal, are both expressed in “working days”.21

[32]   The application for a rehearing was filed well within 20 working days of Judge von Keisenberg’s decision, only two days outside of the correct 28 day window. That short delay could not be said to have caused any prejudice to Mr K. In these circumstances, and in particular Ms K’s reasonable explanation for the small delay and lack of any prejudice caused to Mr K, I consider that it was open to the Judge in the interests of justice to extend the time required for filing an application for rehearing under r 132(3)(a)(ii).

Conclusion on appeal of dismissal of application to rehear

[33]   Having found that there is jurisdiction to determine the application for rehearing where grounds are made out under r 132(3)(a)(ii), I accordingly remit that

21 See High Court Rules 2016, rr 20.3 and 20.4.  I note also that even the definition of a “working  day” differs as between r 1.3 of the High Court Rules and s 29 of the Interpretation Act 1999, with the difference being whether the days between 2 January and 15 January qualify.

determination to Judge von Keisenberg. For clarity’s sake I remit both the decision as to whether it was in the interests of justice to extend the time for filing the rehearing application and determining that application itself.

[34]   I make no comments on the strength or otherwise of the grounds on which Ms K relies to assert a miscarriage of justice. I only observe the Judge’s comment that “the grounds relied on by the applicant strongly suggest grounds for appeal rather than a rehearing”. This is no doubt because the threshold for finding a miscarriage of justice warranting a rehearing is high.

Should an extension of time be granted for the appeal of the judgment?

[35]   The second issue for determination is whether leave should be granted to appeal the substantive Family Court judgment. It is common ground that the Court must have regard to the overall interests of justice and the following factors in exercising its discretion to grant an extension of time to appeal:22

(a)the length of the delay and the reasons for it;

(b)the extent of any prejudice flowing from the grant of the extension;

(c)the merits of the appeal;

(d)whether the matters to be considered on appeal raise any issue of public importance; and

(e)the conduct of the parties.

Length of delay and reasons for it

[36]   Ms K submits that it was reasonable to have understood from her communication with the Family Court Registrars that:

22     My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [17]–[23]; and Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [35]–[40].

(a)her application for a rehearing was yet to be scheduled for a hearing and hence was yet to be determined before the Family Court; and

(b)as such, it would have been contrary to the principle of inexpensive, simple and speedy justice to seek High Court appeal of issues that were understood to be before the Family Court.23

[37]   Ms K deposes that had the Court not accepted the rehearing application for filing, she would have instead lodged an appeal of the judgment and accordingly been in time.

[38]   Mr K argues that she should have been aware that simply filing an application is not in itself a determination of the success or failure of that application. Had she sought legal advice, as she had been encouraged to do, she likely would have been advised to file both the application for a rehearing and appeal simultaneously. It is no excuse that she did not do so. He submits that the delay is excessive and entirely unreasonable. No reasonable justification has been provided for filing the appeal six weeks out of time.

[39]   I find that  the  period  between  the  filing  of  the  rehearing  application  on 7 January 2021 and its delivery to the parties on 25 February 2021 caused delay which was not of Ms K’s making. It would be unfair to take the period between 21 January and 25 February 2021 into account. While Ms K still waited a further 13 days before filing the application for leave, that is a relatively short time frame. On balance, this factor tends toward granting leave.

Prejudice

[40]   The Court must consider where the interests of justice lie and weigh the prejudice which will be caused to the parties by either declining or granting leave.24

[41]   Mr K submits that the Family Court judgment required him to pay Ms K a significant sum of money. Although he discussed the option of lodging his own appeal

23     This principle is enshrined in s 1N(d) of the PRA.

24     Bligh v The Earthquake Commission [2020] NZHC 874 at [26].

with counsel, he ultimately decided that he would rather put an end to the “burdensome litigation which was financially cumbersome and having a toll on his health”.

[42]   The Judge ordered that in view of the pending Christmas break, settlement was to occur no later than 21 January 2021. Mr K acted promptly. He applied to the Court within three days of receiving the judgment for an extension of the settlement date through to 12 February 2021 so that he could apply to the bank for a loan. I note that the extension he sought fell outside the appeal period so that, all things being equal, he would have settled knowing whether or not Ms K was appealing as of right. He secured a mortgage against his property and used all of the inheritance from his late mother to facilitate settlement. Ms K allowed the settlement to go ahead without signalling any intention to appeal. At that time of course, the parties were not aware of the Judge’s determination that she had no jurisdiction to determine the rehearing application.

[43]   Mr K points to the fact that the appellant has refused to engage a lawyer for representation or take legal advice and that this has resulted in prolonged litigation costing him over $80,000 in legal costs to date over six years. I accept that this lack of representation at key stages has likely led to increased costs for Mr K. This is a catch-22 situation. The party in a relationship property dispute who does not have a sustainable income cannot afford to fund litigation, may not be eligible for legal aid funding and the resulting lack of representation leads to prolongation or complication of what is already a distressing and expensive process.

[44]   In response, Ms K argues that Mr K had been made aware of the rehearing application but did not seek for the payment to be stayed pending the outcome of that application. He was thus well aware that Ms K “was not happy with the determination and wanted it redressed” from that time. She also argues that:

(a)having settled does not prevent further payment being made where appropriate; and

(b)as Mr K disclosed resources at the hearing of sufficient capacity to cover or nearly cover the payment, his election to use a loan to make the payment appears to have been a choice he made.

[45]   She further argues that the Court must consider any prejudice caused to herself if the appeal is not allowed, namely:

(a)the Family Court did not take into account that its decision left Mr K “with resource for security for loans as well as assets and the family home”, while it left Ms K without sufficient resources for home ownership in the Auckland region despite her having to remain living in Auckland to maintain schooling and contact arrangements;

(b)loss of capital as she is left facing ongoing rental expenditure; and

(c)the fact that she will have to leave Auckland in order to find housing after her children become independent.

[46]   Those factors relied on by Ms K are merely “lost opportunities” to address those points on appeal since the grant of leave to appeal does not mean that any appeal will or is even likely to succeed.

[47]   On balance, in view of the factors contributing to delay which were not of  Ms K’s making, the prejudice factor weighs slightly in the respondent’s favour. But the delay is not inordinate. I accept there is prejudice to Mr K in that this litigation is burdensome and finality is desirable but this must be balanced against the ordinary right and entitlement to appeal when the appeal is within time. The prejudice would have thus been borne by Mr K in any event. If leave to appeal is granted, then it would also be appropriate as a condition that Mr K be entitled to cross-appeal should he wish to do so.

Merits of the appeal

[48]   An application for leave to appeal out of time does not permit anything more than a summary process in respect of the merits of the proposed appeal. A lack of

merit will be a decisive factor when there is an obvious problem with the proposed appeal. As the Supreme Court said in Almond v Read:25

Consideration of the merits of an appeal in the context of an application to extend time must necessarily be relatively superficial. In this connection, we agree with the observations of the Court of Appeal of England and Wales in R (Hysaj), to the effect that the court should firmly discourage much argument on the merits and should reach a view about them only where they are obviously very strong or very weak. … Accordingly, a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. … The power to grant or refuse an extension of time should not be used as a mechanism to dismiss apparently weak appeals summarily.

[49]   Ms K’s proposed appeal of the Family Court judgment relies on the following asserted grounds:

(a)the award did not adequately compensate for the extent of economic disadvantage under s 15 and s 18B; and

(b)the determination did not require verified documentation of all income from investments and assets.

[50]   A further purported ground asserts that privacy was not maintained by the Family Court. I put this to one side for the purposes of the leave application since it does not properly fall under the rubric of an appeal.

[51]With respect to the s 15 determination, Ms K submits that:

(a)the Judge incorrectly relied upon the fact that Ms K had sought full time work in 2015, but that was untrue, as established in the affidavits dated 1 September 2015 and 11 January 2021;

(b)the Judge relied upon an incorrect income figure for Ms K in 2013 above that demonstrated by the IRD and employment records;

25     Almond, above n 22, at [39(c)] (footnotes omitted).

(c)the Judge failed to account for various other pieces of evidence including the difficulty of obtaining occupational therapy work in and around the family’s needs, that she had been made redundant from full time occupational therapy work, that her health equipment accreditation would require 18 months to regain which limits her prospects of employment, and that occupational therapy skills are not readily transferable;

(d)the provisions of the PRA neither indicate nor require “halving of the disparity value within the respondent’s means but provide for remediating disadvantage to provide for equality”;

(e)determinations under s 15 must take into account the interests of the children which includes evidence showing that greater support may be required following separation;

(f)Mr K controlled family resources which meant that Ms K did not have access to resources which could have been used to continue to her work and that she remains disadvantaged in having to pay for rental accommodation;

(g)when she left the home she was initially homeless and was only able to rent a house for her and the children after being granted a loan and assistance from WINZ in December 2015; and

(h)she assisted Mr K in preparing work reports and that this should have been taken into account when viewing his career advancement and salary increases.

[52]   With respect to the s 18B determination, Ms K submits that the occupational rent award was calculated solely on the basis of the value of the benefit to Mr K of residing in the family home. It did not take into account the economic disadvantage caused to Ms K from the “[f]oregone potential to benefit from alternative investment

of the value of my share of the family home”. She calculates this loss as approximately

$86,250.

[53]   She further submits that evidence only available in February 2021 show that Mr K had approximately $20,000 more income than demonstrated in the IRD records he disclosed. She accordingly submits that rather than relying on Mr K’s “suggestions as to the nature and extent of his income and assets”, the Court should give directions “to provide verified documentation of records in regards to assets and income” for the appeal.

[54]   With respect to the s 15 claim, Mr K submits that the “new evidence” showing that he had a higher income than the amount determined in the Family Court is not new. The appellant is merely referring to a letter dated 9 March 2021 from the IRD providing her notice of entitlement for child support. Mr K submits that there is no “new evidence” of undisclosed income. To the contrary, he has complied with all discovery orders and disclosure obligations throughout the proceedings.

[55]   Likewise, regarding the s 18B award for occupation rent, Mr K submits that at paragraphs [71] and [75] the Judge specifically considered Ms K’s “potential loss of investment opportunity” in calculating the appropriate sum. In particular, the Judge explicitly noted that compensation under s 18B “will include [Ms K’s] claims for use of capital by the respondent and the potential loss of investment opportunity”.26

[56]   Mr K submits that the Family Court correctly analysed the relevant facts and applied the appropriate law. The appellant is essentially seeking to re-litigate issues previously considered and determined by the Family Court.

[57]   Although the judgment subject to the proposed appeal is careful and very comprehensive, and involves discretionary considerations, it is not possible on the summary argument before me to conclude that any appeal would be so hopeless that it is an answer to the application for leave. I am therefore obliged to regard the merits as a neutral factor.

26 At [75].

Public importance

[58]   As to public importance, Mr K submits that the application for leave to appeal out of time raises no issues of general significance. I agree.

The conduct of the parties

[59]   Ms K submits that she has acted appropriately in these proceedings to date and any accusation that she is vexatious from Mr K is untrue, as is plainly demonstrated by the extent to which her applications have been “largely successful”.

[60]   Mr K responds that Ms K has a “propensity to file unnecessary and superfluous proceedings” verging on the vexatious. He notes that despite having received a favourable outcome in the judgment, Ms K seeks to appeal to keep the matter alive to his detriment. He argues that he has consistently complied with court timetabling whereas Ms K has repeatedly disregarded court deadlines and rules resulting in significant costs to him.

[61]   I have sympathy for Mr K’s position and desire to move on with his life without the burden of further litigation. However, the ultimate question is where the interests of justice lie. An appeal lodged within time would have resulted in the same or similar prejudice. The only difference may be that Mr K may have sought to defer settlement if he intended to cross-appeal. A stay would not have been automatic. A further hearing would have been necessary.

[62]   The delay was relatively short when one considers the period from notification of the dismissal of the rehearing application on 25 February 2021and the filing of leave to appeal on 10 March 2021.

[63]   In my assessment, the length of delay, the principal reasons for it and the relative prejudice to each party justifies the grant of leave to Ms K to appeal. This is not to be taken as any indication as to the merits of the proposed appeal, about which I make no comment. A condition of leave is that the appeal is promptly filed and pursued without delay and that Mr K be granted commensurate leave to cross-appeal should that be necessary.

[64]Accordingly, I:

(a)grant leave to appeal the substantive judgment of Judge R von Keisenberg out of time conditional on the appeal being prosecuted diligently and without delay;

(b)direct that the notice of appeal is to be filed and served within 7 days; and

(c)allow the appeal of the dismissal of the rehearing application and remit the matter to the Family Court to determine that application.

Costs

[65]   Ms K has succeeded in her appeal against dismissal of the rehearing application on a jurisdiction point that she did not specifically raise in her application or at the hearing for the obvious reasons set out. I therefore make no order for costs in respect of that application. She has also succeeded in extending the time for lodging an appeal. However, the latter is an indulgence. In the minute of Lang J, he expressly recorded that the Court will also need to determine the issue of costs in relation to Ms K’s delay in filing written submissions.

[66]   My provisional view is that the respondent is entitled to costs on a 2B basis, notwithstanding that Ms K succeeded. If the parties are unable to agree the quantum of costs, a memorandum may be filed within 14 days with any responsive memorandum to be filed and served within a further 7 days thereafter.

[67]Orders accordingly.

............................................................

Walker J