Lange v Lange
[2021] NZCA 104
•31 March 2021 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA693/2020 [2021] NZCA 104 |
| BETWEEN | TERRY CECIL LANGE |
| AND | DEBRA GISELLA LANGE |
| Court: | Brown and Gilbert JJ |
Counsel: | J C LaHatte and J C R Cooper for First Applicant |
Judgment: | 31 March 2021 at 4.00 pm |
JUDGMENT OF THE COURT
AAn appeal is available as of right against the decision declining to set aside the registration of the Australian judgment. The application for leave to appeal is to be treated as a substantive appeal.
BThe stay of execution granted on 16 December 2020 is continued pending determination of the appeal subject to the applicants diligently pursuing that appeal.
CThere is no order for costs.
DThe date for payment of security for costs is 20 working days from the date of this judgment.
EThe time for compliance with r 43(1) of the Court of Appeal (Civil) Rules 2005 is extended for 20 working days from the date of this judgment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Brown J)
Introduction
The first applicant (Mr Lange) applies under s 56(5) of the Senior Courts Act 2016 (SCA) for leave to appeal from a judgment of the High Court dismissing both an application to set aside the registration of a judgment registered under the Trans‑Tasman Proceedings Act 2010 (TTPA) and an application for a stay of execution.[1] The respondent (Ms Lange) opposes the applications.
Background
[1]Lange v Lange [2020] NZHC 2560 [Substantive Judgment].
On 12 June 2019 the Family Court of Western Australia delivered a judgment in relationship property proceedings brought by the respondent against the applicants.[2] On 25 July 2019 the judgment was registered by the respondent in the New Zealand High Court pursuant to s 57 of the TTPA. No application was made to set aside the registration within the 30 working day period specified in s 61(3)(a) of the TTPA.
[2]Lange v Lange [2019] FCWA 128.
Ms Lange commenced a proceeding (CIV-2019-488-60) in the High Court at Whangarei seeking a sale order in relation to a property in Kaitaia. The High Court issued a sale order on 12 March 2020.
On 7 July 2020 the applicants applied for a stay of execution of both the registered judgment and the sale order. On 2 September 2020 they applied for leave to oppose registration of the Western Australian judgment and for an extension of time within which to do so.
In the judgment dated 30 September 2020 (the subject of the present application for leave to appeal) Gault J observed that the application of 2 September 2020 ignored the fact that the Western Australian judgment had already been registered for over a year and that consequently the respondent required an extension of time in order to apply to set aside the registration of that judgment.
Gault J proceeded to treat the application before him as an application for a stay of the New Zealand judgment and an application to set aside registration of the Western Australian judgment, stating:
[25] In any event, as reflected in Mr LaHatte's submissions, the recent application is in substance an application for an extension of time to apply to set aside registration of the judgment under s 61(3)(b) and I treat it accordingly. Indeed, Mr LaHatte seeks not only a stay but to set aside registration of the judgment now.
Both applications were dismissed. The applicants’ application to the High Court under s 56(3) of the SCA for leave to appeal to this Court was declined.[3]
Relevant law
[3]Lange v Lange [2020] NZHC 3151 [Leave Judgment].
Leave is required for an appeal to be brought to this Court from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding.[4]
[4]Senior Courts Act 2016, s 56(3). This is subject to s 56(4).
The term “interlocutory application” is defined in s 4(1) of the SCA:
interlocutory application—
(a) means any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—
(i) an order or a direction relating to a matter of procedure; or
(ii) in the case of civil proceedings, for some relief ancillary to that claimed in a pleading
By contrast, in the High Court Rules 2016 (HCR) the term is defined simply as an application made in accordance with rr 7.19 or 7.41.[5] However the definition of interlocutory order in the HCR is phrased in similar terms to the SCA definition:
interlocutory order—
(a)means an order or a direction of the court that—
(i)is made or given for the purposes of a proceeding or an intended proceeding; and
(ii)concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading; …
[5]Rule 1.3(1).
Rule 18(2) of the Trans-Tasman Proceedings Regulations and Rules 2013 (TTPR) prescribes the form for an application to set aside the registration of an Australian judgment:
The application must be made, and dealt with, under the general procedural rules of the court (as modified by these regulations and rules), as an interlocutory application.
In Finewood Upholstery Ltd v Vaughan, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.[6] The following considerations were recognised as relevant on an application for leave to appeal:[7]
(a) A high threshold exists;
(b) The applicant must identify an arguable error of law or fact.
(c)The alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value.
(d) The circumstances must warrant incurring further delay.
(e) The ultimate question is whether the interests of justice are served by granting leave.
[6]Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
[7]At [9] and [14], citing A v Ministry of Internal Affairs [2017] NZHC 887.
This Court in Ngai Te Hapu Inc v Bay of Plenty Regional Council[8] indicated that considerations similar to the principles applicable to applications under the former s 24G of the Judicature Act 1908, as explained in Meates v Taylor [Leave],[9] apply to applications under s 56(5), stating:[10]
We agree that leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.
Is leave required in respect of the proposed appeal?
[8]Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291.
[9]Meates v Taylor [Leave] (1992) 5 PRNZ 524 (CA) at 526.
[10]Ngai Te Hapu Inc v Bay of Plenty Regional Council, above n 8, at [17].
The leave judgment addressed in some detail the issue whether the two applications before the High Court were interlocutory applications for the purposes of s 56(3) of the SCA:[11]
[11]Leave Judgment, above n 3.
[18] Mr Lange and Ms Lange-Tupe’s application for leave to appeal implicitly accepts that leave is required. Ms Lange’s counsel indicated that leave is not required on the basis of s 56(4) as my judgment dismissed the proceeding but, as indicated, Ms Lange abides the decision of the Court in respect of whether leave to appeal is required, and if required, whether leave should be granted.
[19] As indicated, Mr LaHatte initially applied for a stay under r 17.29 and, following discussion at the hearing, proceeded with an amended (oral) application to set aside registration of the Western Australian judgment. In form at least, those applications appeared interlocutory.
[20] An application to set aside registration of an Australian judgment under s 61(2) the TPPA is an interlocutory application.
[21] An application for a stay under r 17.29 is also an interlocutory application. “Interlocutory application” is defined in s 4 of the SCA to include:
(a) ... any application to the High Court in any civil proceedings or criminal proceedings, or intended civil proceedings or intended criminal proceedings, for—
(i) an order or a direction relating to a matter of procedure; or
(ii) in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and
(b) includes an application to review an order made, or a direction given, on any application to which paragraph (a) applies.
[22] Orders in relation to enforcement are treated as orders for “some relief ancillary to that claimed in a pleading” within s 4(a)(ii). In any event, as both parties have treated my decision as relating to an interlocutory application and I did not hear argument to the contrary, I proceed on the basis that my decision was made on an interlocutory application in relation to both the original application and the amended (oral) application.
[23] The next question is whether my decision dismissed the whole or part of a proceeding. If it did, leave is not required pursuant to subs (4).
[24] The Court of Appeal recently noted in 100 Investments Ltd v PVG Securities Trustee Ltd that only certain kinds of interlocutory applications are referred to in s 56(4) and commented that “[t]he implication is that appeals from other kinds of interlocutory applications which require leave might be the final procedural event in a proceeding”.
[25] My decision may have had the effect of dismissing a proceeding, but the Court of Appeal's decision indicates that on its own, that is not enough for Mr Lange and Ms Lange-Tupe to fall within s 56(4). This case does not involve one of the specific interlocutory applications referred to in s 56(4) and I do not consider that s 56(4) applies. Leave is therefore required.
(Footnotes omitted.)
We agree that the application for a stay of execution is an interlocutory application and hence leave to appeal under s 56(5) is required. However with reference to the application to set aside the registration of the Australian judgment, we take a different view from the Judge who appeared to consider that r 18(2) of the TTPR was conclusive on the question.
Turning to the first limb of the definition of interlocutory application in the SCA, the phrase “a matter of procedure” is not defined. That is not surprising because its boundaries are inevitably imprecise. As Lord Woolf said in Harding v Wealands:[12]
[7] … The word “procedure” is frequently used in contrast to “substance” in order to distinguish between questions of procedural law and substantive law. Thus, unsurprisingly it is used together with the word “practice” … to identify the scope of the Civil Procedure Rules. The scope of the language is wide enough to encompass the contents of a civil procedure code which deals with evidence and remedies.
[8] In determining the meaning of the word “procedure” the context in which the word is being used is of the greatest significance. …
[12]Harding v Wealands [2006] UKHL 32, [2007] 2 AC 1.
In Trotter v Telfer Electrical Nelson Ltd this Court considered that a protest to jurisdiction, based upon the jurisdiction of the Employment Relations Authority, related to a matter of procedure in the sense that it concerned the proper mode of conducting a legal proceeding to determine the issues between the parties.[13]
[13]Trotter v Telfer Electrical Nelson Ltd [2018] NZCA 231, [2019] NZAR 476 at [20].
The Court proceeded to explain that it was not persuaded that an application to stay or dismiss proceedings due to a lack of jurisdiction fell within the categories of decision under s 56(4) of the SCA that may be appealed without leave. Observing that the High Court Judge only stayed one claim and did not even finally dispose of the issues raised in the protest, the Court then said:
[24] … Section 56(6) provides that even if leave is refused in respect of an order or decision the High Court made on an interlocutory application, nothing in the section prevents any point raised in the application from being raised in an appeal against a substantive High Court decision. In other words, the jurisdictional issue could still be raised on the appeal of any substantive judgment on the claim.
[25] The position would have been different if Dobson J had upheld the protest to jurisdiction and dismissed Telfer Electrical’s claim. In that circumstance, Telfer Electrical could have appealed as of right, without the need for leave, as it would fall within s 56(4).
Section 56(4) would not be available to an unsuccessful applicant for an order setting aside the registration of an Australian judgment. That subsection is confined to orders or decisions striking out or dismissing the whole or part of a proceeding, claim or defence, or orders granting summary judgment.
However we consider that s 56(6) is informative on the issue of what amounts to an interlocutory application as it appears to envisage an application the result of which will not be determinative of the particular matter because a further substantive decision is anticipated. Section 56(6) states:
If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.
The grounds on which an Australian judgment may be set aside are limited to those in s 61(2) of the TTPA. The application in the present case is sought to be made on the third ground, namely that:
(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.
In our view it is not appropriate to categorise an application to challenge the registration of a judgment under the TTPA on the ground that the Australian judgment was made without jurisdiction simply as an order or direction relating to a matter of procedure. Dismissal of such an application is final, subject to an appeal being available. The result is analogous to the scenarios addressed in s 56(4).
Turning to the second limb of the interlocutory application definition, this was also considered by this Court in Trotter v Telfer Electrical Nelson Ltd:[14]
[21] In respect of the second limb, we also consider that the relief sought in the protest was “ancillary” to the relief sought in the Statement of Claim. The definition of “ancillary” in the Shorter Oxford Dictionary is subservient or subordinate. In the rules context, the word “ancillary” is used to mean collateral to but flowing out of the relief claimed in the pleadings (for example, r 5.50 — appearance for ancillary matter), or necessary to support or respond to the relief claimed in the pleadings (for example, s 20 of the Senior Courts Act — ancillary powers of Associate Judge).
[22] The relief sought in the application can be seen as ancillary to that sought in the pleading. It responds to the relief sought but is collateral to it — the application for stay (or dismissal) does not engage directly with the relief sought, but rather responds that it is relief which should be pursued in another forum.
(Footnotes omitted.)
[14]Trotter v Telfer Electrical Nelson Ltd, above n 13.
The application to register the Western Australian judgment under s 56 of the TTMA was made in Form 6 as required by r 14(1) of the TTPR. Section 57(1) of the TTMA provides that a Registrar of a New Zealand court must, on application under s 56, register in that court a registrable Australian judgment. A Deputy Registrar of the High Court of Auckland registered the Western Australian judgment by recording on the sealed copy of the order of the Family Court of Western Australia a notation as follows:
Registered pursuant to s 57 of the Trans-Tasman Proceedings Act 2010.
Thus the process did not involve an originating pleading, either a statement of claim or an originating application. Nor was there any hearing or adjudication process but simply the certification by a Deputy Registrar.
It can be contrasted with an application for registration of a judgment under the Reciprocal Enforcement of Judgments Act 1934 which is made by originating application.[15] An order for registration is made by the Court. Understandably an application to set aside the registration is then to be made by interlocutory application.[16]
[15]See High Court Rules 2016, 23.4(1).
[16]See r 23.20(1).
In the case of a TTPA registration application, there is no pleading to which the application to set aside could fairly be described as “ancillary”, even applying the broad interpretation of the word, namely collateral to but flowing out of the relief claimed in the pleadings.
Consequently, as an application to set aside the registration of an Australian judgment under the TTPA is not in our view covered by either limb of the SCA definition of an interlocutory application, we consider that s 56(3) does not apply. Hence the respondents may appeal as of right against the decision declining to set aside the registration.
A stay of execution?
As noted above[17] leave to appeal would be required in respect of the High Court decision declining a stay of execution. However that issue has been overtaken by events. On 16 December 2020 Cooper J granted an application for a stay of execution pending disposition of the application for leave to appeal, as he considered that it likely that an appeal would be rendered nugatory if a stay was not granted.[18] It was a condition of the stay that the applicants diligently pursue the application for leave under s 56(5).
[17]At [14].
[18]Lange v Lange [2020] NZCA 651 at [12].
We have determined that an appeal lies as of right from the decision to dismiss the application to set aside registration of the Australian judgment. We agree with Cooper J that the appeal would likely be rendered nugatory absent a stay of execution.
Hence we order that the stay ordered on 16 December 2020 will continue until determination of the applicants’ appeal subject to the applicants diligently pursuing that appeal. In these circumstances it is unnecessary to entertain the application for leave to appeal in respect of the High Court decision declining a stay.
Result
An appeal is available as of right against the decision declining to set aside the registration of the Australian judgment. The application for leave to appeal is to be treated as a substantive appeal.
The stay of execution granted on 16 December 2020 is continued pending determination of the appeal subject to the applicants diligently pursuing that appeal.
There is no order for costs.
Directions
We treat the appeal as having been filed on 1 December 2020, the date of filing the application for leave to appeal. We direct that the date for payment of security for costs is 20 working days from the date of this judgment. Because the date for compliance with r 40(2)(a) of the Court of Appeal (Civil) Rules 2005 has expired, we direct that the time for compliance with r 43(1) is extended for 20 working days from the date of this judgment.
Solicitors:
Ord Legal, Wellington for First Applicant
Todd & Walker Law, Queenstown for Respondent
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