Lange v Lange - [2020] NZCA 651

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA693/2020
[2020] NZCA 651

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

Counsel:	C LaHatte for First and Second Applicants M R Walker and B B Gresson for Respondent
Judgment: (On the papers)	16 December 2020 at 10.30 am

JUDGMENT OF COOPER J
(Application for stay)

AThe application for a stay of execution is granted, pending disposition of the application for leave to appeal filed on 1 December 2020.
BThe stay is subject to the condition that the applicants must diligently pursue the application for leave to appeal under s 56(5) of the Senior Courts Act 2016.
CCosts on the application are reserved and may be dealt with in the context of the application for leave to appeal.

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REASONS

The applicants seek a stay of execution of a judgment under r 12 of the Court of Appeal (Civil) Rules 2005. Their application is opposed by the respondent.

Background

Mr Lange, the first applicant, and the respondent, Ms Lange, were previously married and lived together in Western Australia. They separated in 2013 and divorced in 2016. In 2010, Mr Lange purchased a property in Kaitaia (the Kaitaia property). He transferred that property to his daughter, the second applicant Ms Lange-Tupe, and subsequently forgave the debt.
On 12 June 2019, the Family Court of Western Australia concluded that the transfer and deed of forgiveness in relation to the Kaitaia property were dispositions to defeat Ms Lange’s claim to the property (the Western Australian judgment).[1] The Court ordered that the deed of forgiveness be set aside, that Mr Lange and Ms Lange-Tupe jointly and severally pay Ms Lange the sum of $514,633,[2] and that a charge be placed over the property. There was no appeal from that judgment. It was registered in the High Court at Whangarei on 25 July 2019 pursuant to s 57 of the Trans-Tasman Proceedings Act 2010. Ms Lange then sought a sale order for the Kaitaia property, which the High Court issued on 12 March 2020.
[1]Lange v Lange [2019] FCWA 128.
[2]Less any payments made pursuant to the Court’s other orders.
Mr Lange and Ms Lange-Tupe applied to the High Court for a stay and to set aside registration of the Western Australian judgment under the Trans-Tasman Proceedings Act.[3] On 30 September 2020, Gault J dismissed these applications.[4] The Judge subsequently also declined applications for leave to appeal and a stay of execution on 30 November 2020.[5]
[3]Trans-Tasman Proceedings Act 2010, s 61.
[4]Lange v Lange [2020] NZHC 2560 [High Court substantive judgment].
[5]Lange v Lange [2020] NZHC 3151 [High Court leave judgment].
Mr Lange and Ms Lange-Tupe filed an application for leave to appeal in this Court on 1 December 2020. The grounds of appeal are that the Western Australian judgment was given in a proceeding in which the subject matter included the Kaitaia property, which…

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 [2020] NZCA 651
Case: [2020] NZCA 651
Decision Date: 16 December 2020 at 10.30 am

CaseChat Overview and Summary

This case involves a dispute between Terry Cecil Lange and Maria Ann-Lange Tupe (the applicants) and Debra Gisella Lange (the respondent). The applicants seek to stay the execution of a judgment issued by the High Court of New Zealand, which ordered the sale of a property in Kaitaia (the Kaitaia property). The applicants argue that the judgment was issued in error and that they will suffer undue financial hardship if the sale proceeds.

The legal issues before the Court of Appeal of New Zealand were whether to grant a stay of execution pending the applicants' appeal and, if so, on what terms. The applicants argued that the Western Australian judgment, which was registered in the New Zealand High Court, was given in a proceeding in which the subject matter included the Kaitaia property, which is prohibited by s 61(2)(c) of the Trans-Tasman Proceedings Act. They also argued that they would suffer undue financial hardship if the execution of the sale is allowed. The respondent opposed the stay application, arguing that she is entitled to receive the benefit of a judgment in her favour, considering the nature of the proceedings, the conduct of the parties, and the delay by the applicants in seeking to set aside the Western Australian judgment.

The Court of Appeal granted the stay of execution, pending disposition of the application for leave to appeal filed on 1 December 2020. The Court considered that it is likely that the appeal will be rendered nugatory if a stay is not granted and that the applicants will prosecute the appeal. The Court also considered that both parties have significant financial interests in the property at issue and that the issues raised by the intended appeal might be said to engage the public interest at least to some extent. The Court granted the stay on terms requiring the applicants to diligently pursue the application for leave to appeal under s 56(5) of the Senior Courts Act. Costs on the application are reserved and may be dealt with in the context of the application for leave to appeal.

This case highlights the importance of considering the balance of convenience and the overall interests of the parties when deciding whether to grant a stay of execution pending an appeal. The Court of Appeal recognised that the applicants may suffer undue financial hardship if the execution of the sale proceeds, but also considered the respondent's entitlement to receive the benefit of a judgment in her favour. The Court's decision to grant the stay on terms requiring the applicants to diligently pursue their appeal for leave ensures that the issues raised by the intended appeal are addressed in the appropriate forum.

Orders