Macnamara v Macnamara - [2022] NZHC 287

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000404

[2022] NZHC 287

BETWEEN
SHERYL ANN MACNAMARA

Plaintiff

AND

NOEL JAMES MACNAMARA

Defendant

CIV-2020-404-000646

BETWEEN

NOEL JAMES MACNAMARA

Plaintiff

AND

SHERYL ANN MACNAMARA

First Defendant

SHERYL ANN MACNAMARA, NOEL JAMES MACNAMARA AND

GRAHAM LINCOLN WILFRED CRAIG as

trustees of the Macnamara Home Trust Second Defendants

SHERYL ANN MACNAMARA, NOEL JAMES MACNAMARA AND

GRAHAM LINCOLN WILFRED CRAIG as

trustees of the Macnamara Family Trust Third Defendants

Teleconference: 21 February 2022

Appearances:

L J Kearns QC for S A Macnamara

B O’Callahan and J D Ryan for N J Macnamara J Cundy for Trustees

Judgment:

25 February 2022

JUDGMENT OF VAN BOHEMEN J

[application for leave to appeal]

This judgment was delivered by me on 25 February 2022 at 1.00pm.
Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar

MACNAMARA v MACNAMARA [application for leave to appeal] [2022] NZHC 287 [25 February 2022]

Introduction

[1] Mr Macnamara applies for leave to appeal orders made in my minute of 13 December 2021, reissued on 17 December 2021. As recorded in that minute, I declined Mr Macnamara’s application to cross-examine witnesses in the hearing of Ms Macnamara’s application to vary the consent orders made by Moore J on 27 August 2020 (Consent Orders). That hearing has been set down for 14 and 15 March 2022.1

[2] The Consent Orders concern the administration and winding up of two trusts which hold most of the assets of Mr and Ms Macnamara. Prior to the making of the Consent Orders, Mr and Ms Macnamara had both been trustees and beneficiaries of the trusts.

[3]Ms Macnamara opposes the application for leave to appeal.

[4] The independent trustees of the trusts, who had been appointed in accordance with the Consent Orders, abide the Court’s decision.

Relevant background

[5] Mr and Ms Macnamara separated in February 2019. Since then, they have been unable to agree on what should happen to the property of the two trusts.

[6] Ms Macnamara and then Mr Macnamara each filed proceedings. Before their substantive claims were heard, they reached agreement on steps to resolve their property disputes, as recorded in the Consent Orders. Those steps included the retirement of the existing trustees and the appointment of independent trustees, who were to realise the assets of the trusts and settle those assets in new trusts for Mr and Ms Macnamara.

[7] Despite the agreement recorded in the Consent Order, matters have not proceeded smoothly. There were delays over the sale of properties at Pauanui and

1 Macnamara v Macnamara HC Auckland CIV-2020-404-404, 17 December 2021 (Minute of van Bohemen J).

Karaka and disagreements over the operation and valuation of OneHeat Ltd, the underfloor heating business that Mr Macnamara has operated and in which Ms Macnamara had also been involved. As noted in my judgment of 19 November 2021, the resolution of the issues between the Macnamaras has involved a considerable amount of Court time.2

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 Macnamara v Macnamara

Details

AGLC: Macnamara v Macnamara [2022] NZHC 287
Case: [2022] NZHC 287
Decision Date: 25 February 2022

CaseChat Overview and Summary

Mr Macnamara applied for leave to appeal against the orders of van Bohemen J that the hearing of Ms Macnamara's application to vary the consent orders concerning the administration and winding up of two trusts should proceed on the basis of submissions only and that cross-examination of witnesses was not required. Ms Macnamara opposed the application. The independent trustees of the trusts, who had been appointed in accordance with the consent orders, abided the Court's decision.

The court considered the requirements for leave to appeal and found that Mr Macnamara had not identified an arguable error of law or fact, the alleged error was not of general or public importance warranting determination or otherwise of sufficient importance to Mr Macnamara to outweigh the lack of general or precedential value, and the circumstances did not warrant incurring further delay. The court also found that granting leave would not serve the interests of justice.

The application for leave to appeal was dismissed. Ms Macnamara and the trustees were entitled to costs on a 2B basis on Mr Macnamara's application for leave to appeal.

Orders