| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA693/2020 [2021] NZCA 447 |
| BETWEEN | TERRY CECIL LANGE |
| AND | DEBRA GISELLA LANGE |
| Hearing: | 19 August 2021 |
Court: | Miller, Gilbert and Collins JJ |
Counsel: | J C LaHatte and JCR Cooper for Appellant |
Judgment: | 7 September 2021 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal against the decision refusing to set aside registration of the Australian judgment is dismissed.
BThe stay pending hearing of this appeal expires on delivery of this judgment.
CMr Lange must pay Ms Lange costs on a band A basis for a standard appeal, with usual disbursements. We certify for second counsel.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Table of Contents
The Australian judgment [2]
Procedural history in New Zealand [11]
The judgment was registrable and registered [11]
No timely application to set aside registration [13]
The High Court judgment [15]
Appeal to this Court permitted, and stay granted [20]
The appeal [21]
What this appeal is not about [24]
The immovable property exception to registration of an Australian judgment [29]
The Kaitaia property was not the subject matter of the proceeding [34]
Injustice to Ms Lange-Tupe [38]
Disposition [42]
This appeal concerns an Australian judgment registered in New Zealand under the Trans-Tasman Proceedings Act 2010 (the TTPA). The principal question is whether the judgment ought not to have been registered because it deals with land in New Zealand, at Kaitaia, and is to be enforced against that land.
The Australian judgment
Debra and Terry Lange began cohabiting in Western Australian in 1994, married in 1997, and separated on 30 November 2013. She brought a relationship property proceeding against him in 2014 and obtained a judgment from Moncrieff J in the Family Court of Western Australia on 12 June 2019.[1]
[1]Lange v Lange [2019] FCWA 128 [Western Australian judgment].
The Kaitaia land had been acquired by the parties in 2010 and registered in Mr Lange’s name. Moncrieff J rejected a claim that he bought it using an inheritance, finding in a judgment severely critical of his evidence and conduct of proceedings that his evidence to that effect was false and the purchase was substantially if not entirely funded using money remitted to New Zealand from the parties’ Australian joint bank accounts.[2]
[2]At [108].
In September 2016 Mr Lange transferred the property to Maria Lange-Tupe, his daughter from a previous relationship, in what Moncrieff J found was a dishonest scheme to defeat Ms Lange’s rights.[3] He purported to sell it (with certain items of plant and equipment) to Ms Lange-Tupe for NZD 514,633, which sum he advanced to her in satisfaction of the purchase price. He immediately executed a deed of forgiveness of the debt. He continues to live on the property.
[3]At [120].
Ms Lange-Tupe was made a party to the Australian proceeding and swore an affidavit in it, but she did not attend the hearing although…
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- AGLC
- Lange v Lange [2021] NZCA 447
- Case
- [2021] NZCA 447
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the New Zealand court had jurisdiction to set aside the registration of the Australian judgment, the interpretation of section 61 of the Trans-Tasman Proceedings Act 2008 (Cth) regarding the grounds for setting aside registration, and whether the registration of the judgment was contrary to public policy in New Zealand. The appellants argued that the New Zealand court should not enforce the Australian judgment because it would be contrary to New Zealand's public policy for the appellants to receive nothing from the sale of their relationship property. The respondents argued that the judgment was correctly registered and should be enforced in New Zealand.
The High Court found that the appellants' application to set aside the registration of the Australian judgment was invalid because it was made beyond the 30-day period stipulated in section 61 of the Act. The Court further held that the appellants had not demonstrated that enforcement of the judgment would be contrary to public policy in New Zealand, as required by section 61(2)(b) of the Act. The Court rejected the argument that the Australian Court had ordered the sale of New Zealand land, instead finding that it had ordered payment of a sum of money. Additionally, the Court held that the appellants had failed to show that the Australian judgment was irregularly obtained or registered in contravention of the Act. The appeal was dismissed.
The final orders of the Court were that the appeal be dismissed and that the respondents be entitled to their costs of the appeal, to be taxed if not agreed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The TTPA admits limited exceptions to registrability. Relevantly, s 61 provides that a liable person may apply to set aside registration on certain grounds:61 Setting aside registration(1)This section specifies the only situations in which a New Zealand court in which an Australian judgment has been registered under section 57 may set aside the registration of the judgment.(2)The New Zealand court must, on application by a liable person within the applicable period under subsection (3), set aside the registration of the judgment if satisfied that—(a) the judgment was registered in contravention of this Act; or(b)enforcement of the judgment would be contrary to public policy in New Zealand; or(c) both of the following subparagraphs apply:(i)the judgment was given in a proceeding the subject matter of which was immovable property, or was given in a proceeding in rem the subject matter of which was movable property; and(ii)that property was, at the time of the proceeding in the original court or tribunal, not situated in Australia.(3) An application under subsection (2) must be made—(a)within 30 working days of the New Zealand court after the day on which the liable person was given notice of registration under section 62; or(b)if the liable person, before or after the end of the period in paragraph (a), applies to the New Zealand court for a longer period—within any longer period the New Zealand court considers appropriate. It will be seen that an application to set aside registration must be brought within 30 days of notice of registration, or within such longer period as the court allows. Mr Lange and Ms Tupe-Lange did not comply with this requirement. In the judgment under appeal, Gault J found they had been given notice of registration by 18 September 2019 and 21 August 2019 respectively.[13] They took no steps until after a sale order was issued on 12 March 2020. On 7 July 2020 Mr Lange moved for a stay of execution. Gault J treated this as an application to set aside registration, and for an extension of time to apply.[14] Before Gault J, counsel for Mr Lange and Ms Lange-Tupe argued that enforcement would be contrary to public policy, for if the judgment were enforced Mr Lange would get nothing from the pool of relationship property. The latter claim was factually incorrect, as Gault J found.[15] He also rejected an argument that registration was contrary to public policy because the Australian Court had ordered that New Zealand land be sold, reasoning that the Court did no such thing but rather ordered payment of a sum of money. Citing the judgment of the Full Court of the Federal Court of Australian in LFDB v SM, in which the same argument had been made, the Judge declined to find that registration was contrary to public policy because a New Zealand court might reach a different outcome had the parties’ relationship property dispute been decided in this country.[16] He also declined to embark on an assessment of procedural fairness in the Australian proceeding, noting there was no suggestion that the judgment was irregularly obtained or registered in contravention of the TTPA. He accepted that “contrary to public policy” is a narrow exception involving notions of repugnance.[17] He declined to engage with an argument that the orders made by the Australian court were beyond its jurisdiction.[18] The judgment had not been appealed. And contrary to an argument that Mr Lange had been treated unfairly as a self-represented litigant, he found that Mr Lange’s claims in his evidence before the High Court did little to impugn Moncrieff J’s strong criticisms of his conduct.[19][15]At [27]. [16]At [28]–[29], citing LFDB v SM [2017] FCAFC 178, (2017) 256 FCR 218 at [36]–[37] and [43].[17]At [30], citing Lane v Questnet Ltd [2009] NZCA 578, [2010] NZAR 210 at [47]. [18]At [31].[19]At [32].