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…

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 [2021] NZHC 1743
Case: [2021] NZHC 1743
Decision Date: 12 July 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, K, the appellant, has appealed the substantive judgment of Judge R von Keisenberg made in the Family Court. The substantive judgment ordered Mr K to pay Ms K a significant sum of money in compensation under ss 15, 18B and 18C of the Property (Relationships) Act 1976. Ms K was dissatisfied with the quantum ordered and filed an application 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. 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 was brought within the required time period. Mr K opposes both.

There are two issues for determination: (a) whether the Judge erred when dismissing the application for rehearing; and (b) whether leave to appeal the substantive judgment should be granted.

The appeal of the dismissal of the rehearing application is allowed. The rehearing application was filed well within 20 working days of Judge von Keisenberg’s decision, only two days outside of the correct 28 day window. The delay could not be said to have caused any prejudice to Mr K. The Judge had the ability to extend the time required for filing an application for rehearing. In these circumstances, and in particular Ms K’s reasonable explanation for the small delay and lack of any prejudice caused to Mr K, it was open to the Judge in the interests of justice to extend the time required for filing an application for rehearing. 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 is remitted to Judge von Keisenberg.

Leave should be granted to appeal the substantive Family Court judgment. 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. The delay is not inordinate. The prejudice to Mr K in that this litigation is burdensome and finality is desirable must be balanced against the ordinary right and entitlement to appeal when the appeal is within time. The merits of the appeal cannot be concluded to be so hopeless that it is an answer to the application for leave. The conduct of the parties justifies the grant of leave. The appeal is promptly filed and pursued without delay and Mr K is granted commensurate leave to cross-appeal should that be necessary.

In conclusion, leave is granted to appeal the substantive judgment of Judge R von Keisenberg out of time conditional on the appeal being prosecuted diligently and without delay. The appeal of the dismissal of the rehearing application is allowed and the matter is remitted to the Family Court to determine that application. The notice of appeal is to be filed and served within 7 days.

Orders