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LFDB v SM

LFDB v SM

Case [2021] NZSC 164 30 November 2021

Civil Litigation & Procedure

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NOTE: ORDERS ARE IN FORCE IN THE HIGH COURT PROHIBITING THE PUBLICATION OR IDENTIFYING PARTICULARS OF THE RESPONDENT.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 129/2021
[2021] NZSC 164

BETWEEN	LFDB Applicant
AND	SM Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	Applicant in person R J Hollyman QC and P B Friedlander for Respondent
Judgment:	30 November 2021

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicant must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

Introduction

In late 2020, the Registrar of the High Court declined to accept for filing a notice of application in which, amongst other matters, the applicant sought reconsideration and setting aside of the judgment of the High Court of 27 October 2015 (the October 2015 judgment) in the parties’ relationship property proceeding.[1] The Registrar’s decision was upheld on review by Brewer J. The applicant appealed to the Court of Appeal against Brewer J’s decision. The Court subsequently made orders striking out the appeal under r 44A(1) of the Court of Appeal (Civil) Rules 2005, essentially on the basis the appeal was an abuse of the process of the Court.[2] The applicant now seeks leave to appeal to this Court from that decision.

Background

[1]SM v LFDB [2015] NZHC 2630 (as reissued on 26 November 2015).

[2]LFDB v SM [2021] NZCA 445 (Kós P, Brown and Goddard JJ) [CA judgment]. After the Court advised the parties it was considering strike-out, the parties filed submissions on strike-out.

The lengthy litigation history of this matter is set out in the judgment of the Court of Appeal.[3] For present purposes, we need only note that an order debarring the applicant from taking any further part in the relationship property proceeding after non-compliance with unless orders remains in force.[4] This Court granted leave to appeal against the decision to make the order debarring the applicant,[5] but leave was subsequently withdrawn.[6] The Court had “formed the view that the manner in which the [applicant] has continued to conduct the proceeding [was] oppressive”[7] and the applicant was “gaming the court system”.[8]
[3]At [5]–[15].
[4]SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494 at [37].
[5]LFDB v SM [2014] NZSC 131.
[6]LFDB v SM [2014] NZSC 197, (2014) 22 PRNZ 262.
[7]At [26].
[8]At [27].
Following that decision, the High Court determined the substantive relationship property proceeding on a formal proof basis. This is the October 2015 judgment the applicant sought to challenge through the notice of application in the High Court. In that judgment, the Court made various orders for the division of relationship property and payment of compensation, including maintenance, the effect of which was that the applicant was to pay various sums to the respondent.
The applicant sought to appeal the October 2015 judgment out of time. On 29 June 2016, the Court of Appeal granted an extension of time to appeal on various…

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 LFDB v SM

Details

AGLC: LFDB v SM [2021] NZSC 164
Case: [2021] NZSC 164
Decision Date: 30 November 2021

CaseChat Overview and Summary

In LFDB v SM, the applicant sought leave to appeal to the Supreme Court of New Zealand from a decision of the Court of Appeal that dismissed an appeal from a decision of the High Court. The applicant's appeal against the High Court's decision had been dismissed by the Court of Appeal on the basis that it was an abuse of process. The applicant sought reconsideration of the Court of Appeal's decision by the Supreme Court. The central legal issue was whether the applicant met the criteria for leave to appeal under the Senior Courts Act 2016. The applicant argued that the Court of Appeal failed to address an issue regarding the effect of the debarment order, thereby breaching procedural fairness. The applicant also sought to rely on a rule that provides for judgments obtained by default to be set aside where there has been or may have been a miscarriage of justice. The Court found that the applicant's arguments were largely repetitive of those made in the Court of Appeal and that the Court of Appeal's assessment was not flawed. The Court concluded that the applicant's appeal had insufficient prospects of success, did not raise any question of general importance, and did not indicate a miscarriage of justice. The application for leave to appeal was dismissed, and the applicant was ordered to pay costs to the respondent.

Orders