King v Griffin HC Wellington CIV 2009-485-2250

[2010] NZHC 2054

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2009-485-2250

CIV 2010-485-1694

IN THE MATTER OF     the Property (Relationships) Act 1976, s 39

BETWEEN  ISOBEL ANNE KING Appellant

AND  STEPHEN ALLAN GRIFFIN Respondent

Hearing:         11 October 2010

Counsel:         R Harley for Appellant

M Greenhough for Respondent

Judgment:      12 October 2010

JUDGMENT OF MILLER J

[1]      This judgment addresses two matters;   Ms King’s application for leave to appeal to the Court of Appeal from my judgment of 3 March 2010, leave to appeal having been refused on 12 April, and her fresh appeal from a further Family Court judgment, dated 24 August 2010.

[2]      The  central  question  concerns  shares  in  EDS  which  were  allocated  to Mr Griffin as part of his employment package.   The original proceeding in the Family Court dealt with shares that had been allocated or awarded in 2005 and 2006, but not those allocated in 2007.  Ms King appears to have accepted, through former counsel, that those shares were not relationship property because they were not allocated or awarded until after the date of separation.  All such shares were awarded or allocated on the basis that they did not vest for three years, but it appears to be common ground that shares that were allocated or awarded, but not yet vested, were

valuable property.

ISOBEL ANNE KING V STEPHEN ALLAN GRIFFIN HC WN CIV 2009-485-2250  12 October 2010

[3]      In my judgment of 3 March I recorded the parties’ agreed list of relationship property.  It included the 2005 and 2006 EDS shares, but not those relating to 2007. Subsequently, however, Ms King sought to have the Family Court bring the 2007 shares into account.   The resulting Family Court judgment also dealt with other matters, being a mortgage break fee, the disposition of money held in trust, and valuation of the family home.  Judge Grace determined that the issue relating to the EDS shares was res judicata, and added that it was not placed before the Family Court at the original hearing.

[4]      The proposed appeal to the Court of Appeal from my own judgment would deal with the valuation of the 2005 and 2006 EDS shares, contending that they should  be  valued  at  the  date  of  the  hearing  in  the  Court  of  Appeal,  and  an arithmetical error that I made in my judgment, undervaluing Ms King’s share by

$31,842.05.

[5]      To complete the narrative, I record that I refused leave to appeal on 12 April. The application, which was filed by Ms King herself, appeared to me simply to relitigate the merits of the appeal.

[6]      I  now  accept,  with  the  benefit  of  counsels’  assistance,  that  there  is  a calculation error in my judgment.  It is debateable whether I have jurisdiction to fix it.  Perhaps more importantly, that is not an end of the matter;  Ms King wishes to contest the date of valuation of the EDS shares, which in turn will have a substantial impact on their value for relationship property purposes.   In the circumstances, I consider that the appropriate course is to grant leave to appeal to the Court of Appeal.

[7]      It is also necessary to timetable the appeal from the subsequent decision of Judge Grace, in respect of which there is a right of appeal to this Court.  Counsel agreed that the sensible course is to have that appeal dealt with before the Court of Appeal hearing, so that that Court will be in a position if necessary to address not only the value of the EDS shares but also the number of shares that are relationship property.

[8]      The appeal is to be heard on 10 November (half day).  Ms Harley is to file and  serve  her  submissions  by  5  November.    I  make  no  direction  so  far  as Ms Greenhough’s submissions are concerned, but it would obviously assist the Court if they were to be filed before the hearing.

Miller J

Solicitors:

S Dyhrberg, Wellington for Appellant

Costa Varuhas & Co, Wellington for Respondent