L v L - [2017] NZHC 2529

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-625 [2017] NZHC 2529

BETWEEN
L

Appellant

AND

L Respondent

Hearing: 28 September 2017

Appearances:

Appellant in person
D A T Chambers QC and A H H Choi for Respondent

Judgment:

17 October 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 17 October 2017 at 11:45 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Morris Legal (Auckland) for Respondent

L v L [2017] NZHC 2529 [17 October 2017]

Introduction

[1] This is an appeal against a minute of Judge Twaddle in the Family Court dated 10 March 2017 issued in connection with a relationship property dispute. The appeal concerns an alleged refusal by Judge Twaddle to order discovery.

Background

[2] The appellant and respondent married in 1992. Although they had separate personal bank accounts, the parties had joint accounts and enterprises. Eventually, the marriage failed.

[3] The parties are litigating over the division of property. The date of their separation is a key issue. The respondent says the parties separated in July 2008 when she told the appellant the marriage was over and he moved into a separate bedroom. They lived separate lives in the former family home until the respondent moved out in mid-December 2015. The appellant, on the other hand, says the parties separated in mid-December 2015 when the respondent left the family home.

[4] The date of separation is important because it will determine whether property acquired from 2008 to 2015 is separate property or relationship property subject to the Property (Relationships) Act 1976 (“PRA”).

[5] A two-day hearing in the Family Court commencing 30 November 2017 has been scheduled to determine the date of separation and the validity of notices of interest lodged against the titles of two properties.1

[6] In his minute of 10 March 2017, Judge Twaddle made timetabling directions to facilitate the 30 November 2017 hearing. The part of the minute said to be a refusal to order discovery is:

[16] Ms Chubb submitted that there could be discovery issues relevant to evidence which [the appellant] may wish to put before the Court about the separation date which would need to be dealt with before there is any hearing, but I am satisfied that matters relevant to the separation date hearing could be dealt with in oral evidence and that it is not necessary for there to

1 See Property (Relationships) Act 1976, s 42.

be a discovery prior to the hearing. Discovery issues could result in unnecessary delay.

Issues

[7] There are, perhaps, three issues to decide:

(a) Is there jurisdiction under s 39(1)(a) of the PRA to bring an appeal against an interlocutory decision of the Family Court in a…

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 L v L

Details

AGLC: L v L [2017] NZHC 2529
Case: [2017] NZHC 2529
Decision Date: 17 October 2017

CaseChat Overview and Summary

In this case, the appellant, L, appealed against a minute of Judge Twaddle in the Family Court dated 10 March 2017, issued in connection with a relationship property dispute. The appeal concerns an alleged refusal by Judge Twaddle to order discovery. The appellant and respondent had separate personal bank accounts but also had joint accounts and enterprises. They married in 1992, but the marriage failed, and they are now litigating over the division of property. The date of their separation is a key issue, as it will determine whether property acquired from 2008 to 2015 is separate property or relationship property subject to the Property (Relationships) Act 1976.

The court was required to decide whether there is jurisdiction under s 39(1)(a) of the Property (Relationships) Act 1976 to bring an appeal against an interlocutory decision of the Family Court in a proceeding under the Property (Relationships) Act 1976. If so, the court needed to determine if Judge Twaddle made an interlocutory decision refusing discovery and whether the appeal should be allowed. The court considered the plain reading of the text of the Act and found that there is jurisdiction under s 39(1)(a) of the Property (Relationships) Act 1976 to bring an appeal against an interlocutory decision of the Family Court in a proceeding under the Property (Relationships) Act 1976. However, the court found that Judge Twaddle did not make a decision refusing discovery, as there was no formal application for discovery and supporting affidavit as required by r 141 of the Family Court Rules 2002.

On the merits of discovery, the court found that the discovery sought by the appellant on the scale sought would not be reasonably necessary for the hearing on 30 November 2017, given the respondent's concessions as to the intermingling of finances and the appellant's lack of legal role in some of the entities concerned. The court considered the principles governing discovery in relationship property litigation and concluded that a more tailored discovery might be appropriate but would have to be clearly aimed at the issues to be adjudicated and reasonably necessary for the just and efficient disposal of them.

The appeal was dismissed, and the respondent was entitled to costs, which may be fixed by the Registrar if the parties cannot agree.

Orders