Lange v Lange

[2020] NZHC 3151

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-60

[2020] NZHC 3151

UNDER

the Trans-Tasman Proceedings Act 2010

IN THE MATTER

of a judgment registered pursuant to s 57 of the Act

BETWEEN

DEBRA GISELLA LANGE

Applicant

AND

TERRY CECIL LANGE

First Respondent

MARIA ANN LANGE-TUPE

Second Respondent

Hearing:	On the papers
Counsel:	M R Walker and B B Gresson for the Applicant C J LaHatte for the Respondents
Judgment:	30 November 2020

JUDGMENT OF GAULT J

(Applications for leave to appeal and stay)

This judgment was delivered by me on 30 November 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr M R Walker and Mr B B Gresson, Todd & Walker, Queenstown Mr C J LaHatte, Wellington

Ord Legal (Respondents’ instructing solicitor), Wellington

LANGE v LANGE [2020] NZHC 3151 [30 November 2020]

Introduction

[1]    Mr Lange and Ms Lange-Tupe seek leave to appeal against my judgment dated 30 September 2020, dismissing their application for a stay and to set aside registration of a Western Australian judgment in favour of Ms Lange under the Trans-Tasman Proceedings Act 2010 (TTPA).1 Mr Lange and Ms Lange-Tupe also apply for a stay of execution of my judgment pending appeal.

[2]    The parties consent to the  applications  being  determined  on  the  papers. 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. She opposes the application for a stay pending appeal.

Background

[3]    The factual background to the  proceeding  is  set  out  in  my  judgment  of 30 September 2020. I do not repeat it in detail here.

[4]    Ms Lange and Mr Lange were married in 1997. They separated in November 2013 and divorced in 2016. During the marriage, they lived in Western Australia.

[5]In 2010 Mr Lange purchased a property in Kaitaia (the Kaitaia property).

[6]    After separation, in 2014 Ms Lange commenced the Western Australian proceeding.

[7]    In 2017 Mr  Lange transferred the Kaitaia property to his adult daughter,    Ms Lange-Tupe, and subsequently forgave the debt.

[8]    On 12 June 2019, Moncrieff J in the Family Court in Australia relevantly ordered Mr Lange and Ms Lange-Tupe to pay Ms Lange $514,633 (the Western Australian judgment).2 He concluded the transfer and deed of forgiveness in favour of Ms Lange-Tupe were dispositions to defeat Ms Lange’s claim to the property.

1      Lange v Lange [2020] NZHC 2560.

2      Less any payments in compliance with other orders.

Moncrieff J ordered that the deed of forgiveness be set aside and ordered a charge be placed over the Kaitaia property.

[9]    There was no appeal against the Western Australian judgment. It was registered in this Court on 25 July 2019 pursuant to s 57 of the TTPA.

[10]Ms Lange then sought a sale order for the Kaitaia property.

[11]   Mr Lange and Ms Lange-Tupe applied for a stay of execution of the sale order, which in substance turned into an application to set aside registration of the Western Australian judgment pursuant to 61 of the TTPA.

[12]   In relation to the application to set aside registration of the judgment pursuant to s 61 of the TTPA, Mr Lange and Ms Lange-Tupe submitted that registration of the judgment should be aside under both or either ss 61(2)(b) and (c), which provide as follows:

(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.

[13]   I concluded that enforcement of the judgment would not be contrary to public policy.

[14]   I also concluded the Western Australia judgment was not “given a proceeding the subject matter of which” was the Kaitaia property, for two reasons.3 First, the Kaitaia property was not at issue in the Western Australian proceeding in the sense required by s 61(2)(c)(i). For s 61(2)(c) to apply, the immovable property outside Australia must itself be in issue in the proceeding. In the Western Australia proceeding, Ms Lange was merely seeking to have the asset value treated as part of

3 At [38].

the relationship property pool. Secondly and relatedly, interpreting s 61(2)(c)(i) to apply on the basis the proceeding sought to have the Kaitaia property included in the assets and liabilities pool for the purposes of the Family Law Act 1975 (Cth) would mean that including the value of New Zealand land in any Australian case would preclude enforcement of the judgment under the TTPA. I doubted that was the intention of s 61(2)(c) (or its Australian equivalent if the value of Australian land was somehow taken into account in a New Zealand case). That would require separate proceedings in the other country merely to include the value of the asset.

[15]   I dismissed both the application for a stay and to set aside registration of the Western Australian judgment.

[16]   The grounds upon which Mr Lange and Ms Lange-Tupe seek leave to appeal are as follows:

(a)The Western Australian judgment was “given in a proceeding the subject matter of which” included the Kaitaia property and as such the Western Australian judgment was given in a proceeding the subject matter of which was immovable property (outside Australia).  Under  s 61(2)(c) of the TTPA, registration of that judgment should have been set aside.

(b)Mr Lange will suffer undue financial hardship if the execution of sale is allowed, amounting to a substantial miscarriage of justice under     r 17.29 of the High Court Rules 2016.

(c)Ms Lange-Tupe will also suffer undue financial hardship if the execution of sale is allowed, amounting to a substantial miscarriage of justice under r 17.29 of the High Court Rules 2016.

Is leave required?

[17]   Section 56(1)(a) of the Senior Courts Act 2016 (SCA) gives the Court of Appeal jurisdiction to hear and determine appeals from a judgment of the High Court.

However, s 56(1) is subject to subs (3),4 and subs (4) creates an exception for orders that would otherwise fall under subs (3).5 Those subsections are as follows:

(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.

(4)Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—

(a)striking out or dismissing the whole or part of a proceeding, claim, or defence; or

(b)granting summary judgment.

[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.6

[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

4      Pursuant to subsection (2).

5      100 Investments Ltd v PVG Securities Trustee Ltd [2020] NZCA 458 at [7].

6      Trans-Tasman Proceedings Regulations and Rules 2013, reg 18(2).

(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).7 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”.8

[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.

Should leave be granted?

Approach to leave to appeal

[26]   In Finewood Upholstery Ltd v Vaughan, Fitzgerald J characterised the leave to appeal requirement as a “filtering mechanism” to ensure that unmeritorious appeals of

7      This is at least implicit in Hampton v Minter Ellison Rudd Watts [2020] NZCA 291, (2020) NZTC 24-069.

8      100 Investments Ltd v PVG Securities Trustee Ltd [2020] NZCA 458 at [19].

interlocutory orders or appeals of interlocutory orders of no great significance do not unnecessarily delay the proceeding in which the orders were made.9 The Court of Appeal in Greendrake v District Court of New Zealand endorsed that comment.10 Fitzgerald J also recognised the following considerations as being relevant on an application for leave to appeal:11

(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; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[27]   In Li v Chief Executive, Ministry of Business, Innovation and Employment, Palmer J considered the “purpose behind s 56(3) is to lessen tactical delays and enhance the efficiency of the administration of justice”.12 He held that an application to appeal an interlocutory decision is likely to be granted where:13

(a)there is good reason to consider it before, or separately to, the substantive appeal; and

(b)it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal.

[28]If this Court refuses leave, the Court of Appeal may grant leave under s 56(5).

9      Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].

10 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

11 Finewood Upholstery Ltd v Vaughan at [9] and [14], referring to a decision of Dobson J in A v Minister of Internal Affairs [2017] NZHC 887. The Court of Appeal in Greendrake v District Court of New Zealand referred to these considerations without adverse comment at [6].

12 Li v Chief Executive, Ministry of Business, Innovation and Employment  [2018] NZHC 1171, [2018] NZAR 1134 at [20].

13 At [22].

Arguable error

[29]   As I have said in other applications for leave to appeal, I am conscious that    I am being asked to review the correctness of my own decision.14 Particularly given there appears to have been no other decisions discussing the correct interpretation of s 61(2)(c), the easier course might simply be to accept the alleged error must be arguable but that would not be the correct approach. I must assess whether there is an arguable error.

[30]   As outlined above at [16](a)], the first ground of appeal is that the Western Australian judgment was “given in a proceeding the subject matter of which” included the Kaitaia property and as such the Western Australian judgment was given in a proceeding the subject matter of which was immovable property.  Mr  Lange and  Ms Lange-Tupe say that registration of the Western Australian judgment should have been set aside under s 61(2)(c) of the TTPA.

[31]   This ground of appeal simply repeats the argument that I addressed and rejected in the judgment. For the reasons set out in the judgment, and summarised above at [14], I consider that s 61(2)(c) does not apply. So far as I am aware, there are no authorities on point. The absence of any appellate authority does not itself mean the alleged error relating to the interpretation of s 61(2)(c) and corresponding result is capable of bona fide argument.15 I acknowledge that my reference at [38] of the judgment to “applying s 61(2)(c) in its statutory context” suggests an alternative literal interpretation of “a proceeding the subject matter of which was immovable property” may be possible and that I adopted a purposive approach. Even so, and in the absence of a refined argument, I do not consider there is an arguable error.

[32]   I do not consider the second and third grounds of appeal (that Mr Lange and Ms Lange-Tupe would suffer undue financial hardship if the execution of sale is allowed, amounting to a substantial miscarriage of justice under r 17.29 of the High Court Rules 2016) give rise to an arguable error of law or fact, for the reasons outlined in my substantive judgment. First, the application to set aside registration of the

14     See Mad Butcher Holdings Ltd v Standard 730 Ltd [2019] NZHC 699 at [13]; and NZ Fintech Ltd v Credit Corp Financial Solutions Pty Ltd [2019] NZHC 1210 at [13].

15     Mudajaya Corporations Berhad v Keng [2019] NZHC 1693 at [10].

judgment effectively overtook the application for a stay under r 17.29. Secondly, the existence of separate New Zealand Family Court proceeding does not justify a stay. The substantial miscarriage of justice must relate to enforcement of the judgment, not the judgment itself. The Family Court proceeding is not an opportunity to relitigate the findings of the Western Australian Court. Thirdly, Ms Lange would likely face undue financial hardship if the judgment is not enforced. In my substantive judgment, I considered a sale order was in the interests of justice, given the prejudice to Ms Lange caused by delay in receiving the benefit of the judgment debt outweighed the prejudice to Mr Lange and  Ms  Lange-Tupe  resulting  from  sale  of  the  Kaitaia  property.  In addition, Ms Lange-Tupe’s prejudice is confined to losing the benefit of Mr Lange’s “gift”. Finally, Mr Lange and Ms Lange-Tupe’s delay in seeking a stay weighed against granting one.   Again, these grounds of  appeal  repeat the arguments that      I addressed and rejected in the judgment.

Other factors

[33]   I turn now to address the other factors to be considered on an application for leave to appeal.

[34]   I accept the first alleged error is of some general or public importance. One of the purposes of the TPPA is to streamline the process for resolving civil proceedings with a Trans-Tasman element in order to reduce costs and improve efficiency.16 Uncertainty in the interpretation of s 61(2)(c) does not assist in achieving that purpose. Given the frequency of personal and business interactions between New Zealand and Australia, it is of wider importance that the scope of s 61(2)(c) is clear.

[35]   I do not consider the second or third alleged errors are of general or public importance. They relate only to the application of the law to Mr Lange and his daughter’s specific circumstances.

[36]   I do accept the alleged errors are of personal importance  to Mr Lange and  Ms Lange-Tupe. If registration of the Western Australian judgment is not set aside, the sale order will be enforced. Mr Lange currently resides at the Kaitaia property.

16 Trans-Tasman Proceedings Act 2010, s 3(1).

The Kaitaia property is also apparently Ms Lange-Tupe’s main asset and the farm is her main source of income. In relation to the issue of importance, as Dunningham J noted in Greenfields Internet Ltd v Rural Networks South Island Ltd, “where [a] decision finally determines any aspect of the claim by either party, that would almost inevitably mean that leave to appeal should be granted”.17

[37]   Granting leave to appeal would not delay an ongoing proceeding but would lead to further delay in the enforcement of the Western Australian orders by way of the sale order, which would impact Ms Lange. I reiterate the comments made in my substantive judgment that Moncrieff J’s strong criticisms of Mr Lange’s conduct have some parallel with his further delay in this proceeding.18 Even though Mr Lange and Ms Lange-Tupe likely had notice of registration of the Western Australian judgment by August/September 2019, they did not apply for a stay until May 2020 nor file their application for leave/extension of time to oppose registration until 2 September 2020. They failed to oppose registration for approximately one year and as such required leave under s 61(3).

[38]   To grant leave to  appeal,  the  circumstances  must  warrant  further  delay. As I concluded in my substantive judgment, any financial hardship suffered by either Mr Lange or Ms Lange-Tupe as a result of the judgment being enforced, is outweighed by the hardship suffered by Ms Lange if enforcement of the judgment is further delayed. Ms Lange’s Western Australian property is at risk because Mr Lange has not complied  with  the  Western  Australian  Court  order  to  pay  off  its  mortgage.  The outstanding amount is approximately $105,912.42 and as a result of a three-month extension granted by Bankwest (the mortgagee), Ms Lange has until 12 January 2021 to pay it. Bankwest was advised of Mr Lange and Ms Lange-Tupe’s application for leave and a stay pending appeal.  It  is  unclear  whether  it  will  still  enforce  the  12 January 2021 deadline – its lawyers simply advised “our client reserves its rights”. As mentioned above at [27], the purpose behind s 56(3) is to lessen tactical delays and enhance the efficiency of the administration of justice.

17     Greenfields Internet Ltd v Rural Networks South Island Ltd [2019] NZHC 645 at [12].

18     Lange v Lange [2020] NZHC 2560 at [32].

[39]   Overall, standing back and assessing the matter in a pragmatic and realistic way, I do not consider the interests of justice are served by granting leave. Despite the lack of authority, I do not consider it is arguable that s 61(2)(c) is intended to set aside registration of the Western Australian judgment in these circumstances. I consider the grounds of appeal raised are not capable of bona fide and serious argument.19 In addition, the acknowledged importance of the issue to Mr Lange and Ms Lange-Tupe is outweighed by the lack of appeal against the Western Australian judgment, their past delays and the hardship suffered by Ms Lange if enforcement of the judgment is further delayed.

Application for stay

[40]   As indicated, Mr Lange and Ms Lange-Tupe also apply for a stay of execution of my judgment pending appeal. Ms Lange opposes a stay pending appeal.

[41]   The Court of Appeal in Greymouth Petroleum Holdings Ltd v Empresa Nacional del Petróleo outlined the “well-established” approach to granting a stay:20

The starting point is that a successful party is entitled to the fruits of its judgment. An appellant who seeks to stop this must show why the usual consequences should not follow. The court will need to balance the competing rights of the party who has obtained judgment against the need to preserve the appellant’s position in the event of the appeal succeeding.21 Factors to be taken into account in the balancing exercise22 … include whether the appeal may be rendered nugatory by the lack of a stay, the apparent strength of the appeal, whether the successful party will be injuriously affected by the stay, and the overall balance of convenience.

[42]   The Court exercises its discretion in a manner which, balancing all the factors, best meets the overall justice of the case.

[43]   Having declined leave to appeal, there is no need to preserve the position of Mr Lange and Ms Lange-Tupe pending appeal. There is no appeal (unless the Court of Appeal grants leave). If I had granted leave to appeal, I would likely have granted

19     See Li v Chief Executive, Ministry of Business, Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134 at [21(d)].

20     Greymouth Petroleum Holdings Ltd v Empresa Nacional del Petróleo [2017] NZCA 397 at [10].

21     Duncan v Osborne Buildings Ltd (1992) 6 PRNZ 85 (CA) at 87.

22     See Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (CA); and Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].

a stay because I accept giving effect to the sale order would render the appeal nugatory. I would have imposed strict conditions requiring prompt steps to be taken to progress the appeal given the history of delay in this matter and the Western Australian proceeding.

Result

[44]The application for leave to appeal and for a stay pending appeal is declined.

Gault J