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Lange v Lange

Lange v Lange

Case [2020] NZHC 3151 30 November 2020

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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…

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] NZHC 3151
Case: [2020] NZHC 3151
Decision Date: 30 November 2020

CaseChat Overview and Summary

Terry Cecil Lange and Maria Ann Lange-Tupe applied for leave to appeal the decision of Gault J, dismissing their application for a stay and to set aside registration of a Western Australian judgment in favour of Debra Gisela Lange. The applicants also applied for a stay of execution of the judgment pending appeal. The applicants argued that the Western Australian judgment was given in a proceeding the subject matter of which was immovable property and should be set aside under s 61(2)(c) of the Trans-Tasman Proceedings Act 2010. They further argued that they would suffer undue financial hardship if the sale order was enforced. Debra Gisela Lange opposed the application for leave to appeal and for a stay pending appeal.

The court considered whether leave to appeal was required. The application for leave to appeal implicitly accepted that leave was required. The court concluded that leave was required as the decision did not fall under s 56(4) of the Senior Courts Act 2016. The court then considered whether leave to appeal should be granted. The court assessed whether there was an arguable error of law or fact, whether the alleged error was of general or public importance warranting determination, whether the circumstances warranted incurring further delay, and whether the interests of justice were served by granting leave. The court concluded that there was no arguable error, and the circumstances did not warrant incurring further delay. The court declined the application for leave to appeal.

The court then considered the application for a stay pending appeal. The court exercised its discretion in a manner which, balancing all the factors, best met the overall justice of the case. The court declined the application for a stay pending appeal. The application for leave to appeal and for a stay pending appeal was declined.

Orders