Lange v Lange
[2020] NZCA 651
•16 December 2020 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA693/2020 [2020] NZCA 651 |
| BETWEEN | TERRY CECIL LANGE |
| AND | MARIA ANN-LANGE TUPE |
| AND | DEBRA GISELLA LANGE |
| Counsel: | C LaHatte for First and Second Applicants |
Judgment: | 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 is prohibited by s 61(2)(c) of the Trans-Tasman Proceedings Act. Mr Lange and Ms Lange-Tupe say they will suffer undue financial hardship if the execution of the sale is allowed.
The Senior Courts Act 2016 applies. The application can be heard by a single Judge and can properly be resolved on the papers.[6]
Application for stay
[6]Senior Courts Act 2016, s 49(3) and (7)(a).
Mr Lange and Ms Lange-Tupe seek a stay of execution of the High Court’s judgment of 30 September 2020 and the sale order on the basis that they intend to appeal the ruling (on the grounds detailed at [5] above) and that they will suffer undue financial hardship if the judgment and sale are enforced.
Mr Lange has filed an affidavit in support of his application. He states that his appeal will be rendered pointless if the Kaitaia property is sold. He is financially dependent on state benefits and will have nowhere to live if the property is sold. He disputes the asset value of the property prescribed in the High Court judgment. Further, he states his concerns for his daughter, Ms Lange-Tupe, who would be in a similar situation if the property was sold.
Opposition
Ms Lange opposes the application for a stay on the following grounds:
(a)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.
(b)The High Court judgment found that the financial hardship to Ms Lange of not being able to enforce the judgment outweighed the hardship to the applicants.[7]
(c)While the appeal may be rendered nugatory by the stay application being declined, this is not determinative of whether the stay should be granted.
Discussion
[7]High Court leave judgment, above n 5, at [38].
Gault J found that an application for leave to appeal needed to be made to the High Court at first instance as the proceedings were interlocutory and the exception in s 56(4) of the Senior Courts Act did not apply.[8] The applicants therefore require leave under s 56(5) to bring their appeal.
[8]At [20]–[25].
The stay application is governed by r 12(3)(a) of the Court of Appeal (Civil) Rules. The principles to be applied in a stay application were recently set out by this Court in Wootton v Wootton:[9]
[9] In determining whether or not to grant a stay under r 12(3), the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”.[10] Factors to be taken into account in this balancing exercise include:[11]
(a) whether the appeal may be rendered nugatory by the lack of a stay;
(b) the bona fides of the applicant as to the prosecution of the appeal;
(c) whether the successful party will be injuriously affected by the stay;
(d) the effect on third parties;
(e) the novelty and importance of questions involved;
(f) the public interest in the proceeding; and
(g) the overall balance of convenience.
While that list does not include the apparent strength of the appeal, that is treated as an additional factor.
[9]Wootton v Wootton [2020] NZCA 478.
[10]Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.
[11]Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].
I consider it likely that the appeal will be rendered nugatory if a stay is not granted. Also, the substantial history of the litigation justifies a conclusion that the applicants will prosecute the appeal. Both parties have significant financial interests in the property at issue. The High Court leave judgment describes financial pressures on Ms Lange that cannot be resolved without execution of the judgment.[12] These matters seemingly need to be resolved by January 2021. Her notice of opposition has not elaborated on whether these financial pressures have alleviated or worsened. Nor has she sworn an affidavit in opposition to the present application. But I accept there is a possibility she will be adversely affected by a stay. Mr Lange’s affidavit sets out the extent of the financial hardship he will suffer from execution of the judgment.
[12]High Court leave judgment, above n 5, at [38].
As to the issues raised by the intended appeal, the Judge acknowledged that there was no relevant authority on the interpretation of s 61(2)(c) of the Trans-Tasman Proceedings Act, and the issue raised might be said to engage the public interest at least to some extent.[13] On the other hand, the Judge considered the meaning of the statute and its application to the present facts were clear. He considered the issues sought to be raised on appeal did not raise arguable errors.[14]
[13]At [29], [31] and [34].
[14]At [31]–[32].
The applicants will need to convince this Court that the Judge erred when he declined leave to appeal. My impression is that this will be a significant hurdle, but merits are best addressed in the context of the application for leave. Weighing these considerations together and considering the overall balance of convenience I consider that the appropriate course to follow is to grant the stay, but to do so on terms requiring the applicants to diligently pursue the application for leave to appeal.
The question of whether the stay should continue can be addressed again if leave is granted for the appeal under s 56(5) of the Senior Courts Act.
Result
The application for a stay of execution is granted, pending disposition of the application for leave to appeal filed on 1 December 2020.
The 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.
Costs on the application are reserved and may be dealt with in the context of the application for leave to appeal.
Solicitors:
Ord Legal, Wellington for First and Second Applicants
Todd & Walker Law, Queenstown for Respondent
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