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LFDB v SM

LFDB v SM

Case [2014] NZSC 197 5 December 2014

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NOTE: THE ORDER MADE BY THE HIGH COURT ON 28 MAY 2012 PROHIBITING PUBLICATION OF THE PARTIES' NAMES AND ANY PARTICULARS THAT WOULD IDENTIFY THE RESPONDENT (INCLUDING HER NAME, OCCUPATION, EMPLOYMENT HISTORY AND HEALTH) REMAINS IN FORCE PENDING FURTHER ORDER OF THE HIGH COURT.

IN THE SUPREME COURT OF NEW ZEALAND

SC 78/2014
[2014] NZSC 197

BETWEEN	LFDB Appellant
AND	SM Respondent

Hearing:	5 December 2014
Court:	Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ
Counsel:	M S Smith and E M Eggleston for Appellant A E Hinton QC for Respondent
Judgment:	5 December 2014
Reasons:	22 December 2014

REASONS FOR JUDGMENT OF THE COURT

A Leave to appeal is revoked.
B Costs are reserved.

____________________________________________________________________

REASONS

(Delivered by McGrath J)

On 25 September 2014, this Court gave the appellant leave to appeal[1] against a judgment of the Court of Appeal debarring him from taking any further part in a relationship property proceeding.[2] In the course of hearing the appeal on 5 December 2014 and after hearing counsel on the point, the Court decided to withdraw the grant of leave. We now set out our reasons for doing so.

Background

[1]LFDB v SM [2014] NZSC 131 [LFDB v SM (leave)].

[2]SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494 [SM vLFDB (CA)].

In March 2009, the respondent brought a relationship property proceeding in the Family Court. In October 2011, a Family Court Judge directed that the proceeding be transferred to the High Court.[3] The Family Court Judge observed that, by that time, the parties had embarked on 23 interlocutory applications, filed 53 affidavits, received seven judgments or directions from the Court and brought further applications or appeals in respect of those matters in the High Court. By this time the legal costs incurred by both parties were substantial. While recognising that both parties had brought contested interlocutory applications, and appealed against judgments on them, the Family Court Judge observed that the appellant’s “conduct of the case so far tends to indicate that he is waging a war of attrition against the [respondent]”.[4]
[3]SM v LFDB FC North Shore FAM-2009-44-726, 7 October 2011.
[4]At [13].
On 19 September 2012, Priestley J made an unless order against the appellant in respect of his “longstanding and conspicuous failure” to pay costs awarded in the Family Court.[5] Unless he paid the costs and complied with other directions of the Court, by a set date he would be debarred from contesting the removed proceeding. The appellant paid the outstanding sum the day before the High Court’s unless order took effect. At the time of Priestley J’s judgment, the appellant was in default in relation to a number of other orders, including for discovery.[6]
[5][SM] v [LFDB] HC Auckland CIV-2011-404-6851, 19 September 2012 at [15]–[17].
[6]At [13].
On 31 July 2013, after giving directions on interlocutory applications, Ellis J ordered that the appellant pay the respondent costs of $20,000 plus specified interest.[7] The appellant failed to…

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 [2014] NZSC 197
Case: [2014] NZSC 197
Decision Date: 5 December 2014

CaseChat Overview and Summary

The case of LFDB v SM involved an appeal by the appellant against a judgment of the Court of Appeal, which had debarred him from further participation in a relationship property proceeding. The case originated from a proceeding brought by the respondent in the Family Court in March 2009. The appellant had demonstrated a pattern of non-compliance with court orders and incurred substantial legal costs. After multiple interlocutory applications, judgments, and directions, the appellant's conduct led the Family Court Judge to observe that he was "waging a war of attrition against the [respondent]." Various unless orders were made against the appellant, which he failed to comply with, leading to his debarment from further involvement in the proceeding. The appellant subsequently paid the outstanding costs and applied to set aside the debarring order, which was granted by Ellis J. However, the respondent appealed this decision, and the Court of Appeal reinstated the debarring order.

The legal issues before the Supreme Court included whether the Court should revoke the leave to appeal granted to the appellant and if it was necessary in the interests of justice for the Court to hear and determine the appeal. The Court considered the appellant's ongoing conduct in the litigation and his failure to comply with the latest costs order, which became known to the Court during the hearing. The Court also considered the appellant's financial means to pay the costs orders, which he had previously denied.

The Court concluded that the appellant's continued obstructive and unreasonable conduct in the litigation, as well as his failure to comply with the latest costs order, demonstrated that he was gaming the court system and abusing the legal process. The Court found that the case was not suitable for determining the legal issues at that time, as the appellant's conduct created more problems for the respondent and the courts than previously understood. The Court revoked the leave to appeal, reserving the question of costs.

In summary, the Supreme Court revoked the leave to appeal granted to the appellant and decided that it was not in the interests of justice for the Court to hear and determine the appeal. The Court found that the appellant's ongoing conduct in the litigation demonstrated an abuse of the legal process, and the case was not suitable for determining the legal issues at that time.

Orders