Lange v Lange - [2021] NZCA 104

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA693/2020
[2021] NZCA 104

BETWEEN	TERRY CECIL LANGE First Applicant MARIA ANN LANGE-TUPE Second Applicant
AND	DEBRA GISELLA LANGE Respondent

Court:	Brown and Gilbert JJ
Counsel:	J C LaHatte and J C R Cooper for First Applicant No appearance for Second Applicant M R Walker and B B Gresson for Respondent
Judgment: (On the papers)	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.

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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…

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 Lange v Lange

Details

AGLC: Lange v Lange [2021] NZCA 104
Case: [2021] NZCA 104
Decision Date: 31 March 2021 at 4.00 pm

CaseChat Overview and Summary

Lange v Lange is an appeal regarding the registration of a family law judgment under the Trans-Tasman Proceedings Act 2010 (TTPA). The first applicant, Mr Lange, and the second applicant, Ms Lange-Tupe, sought leave to appeal against the High Court’s decision to dismiss their application to set aside the registration of a Western Australian family law judgment in the New Zealand High Court and their application for a stay of execution. The respondent, Ms Lange, opposed the application for leave to appeal. The Court of Appeal found that an appeal lies as of right against the decision declining to set aside the registration of the Australian judgment. The Court held that the application to set aside the registration of an Australian judgment under the TTPA is not covered by the Senior Courts Act 2016 definition of an interlocutory application, and thus s 56(3) does not apply. The appeal against the decision to dismiss the application to set aside registration of the Australian judgment is therefore available as of right. The Court of Appeal also continued the stay of execution granted on 16 December 2020 pending determination of the applicants’ appeal subject to the applicants diligently pursuing that appeal. There was no order for costs. The date for payment of security for costs was 20 working days from the date of the judgment and the time for compliance with r 43(1) of the Court of Appeal (Civil) Rules 2005 was extended for 20 working days from the date of the judgment.

Orders