Malcolm Edward Rabson v Linda Gallagher and Wayne Seymour Chapman as trustee of the Gallagher Rabson Family Trust

[2012] NZSC 26

IN THE SUPREME COURT OF NEW ZEALAND

SC 5/2012
[2012] NZSC 26

BETWEEN  MALCOLM EDWARD RABSON
Applicant

AND  LINDA GALLAGHER
First Respondent

AND  WAYNE SEYMOUR CHAPMAN AS TRUSTEE OF THE GALLAGHER RABSON FAMILY TRUST
Second Respondent

AND  MALCOLM RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST
Third Respondent

Court:             Blanchard, Tipping and William Young JJ

Counsel:         Applicant in Person
N Levy for First Respondent
S A Barker for Second Respondent (abiding decision of Court)

Judgment:      16 April 2012

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed with costs of $4,000 to the first respondent

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REASONS

1. The applicant and the first respondent are in disagreement about their rights to property under the Property (Relationships) Act 1976.  In the High Court, to which her proceeding was moved from the Family Court, Ms Gallagher was largely successful.[1]  The High Court also found in her favour on certain other issues including one heard on appeal from the Family Court.[2]  On Mr Rabson’s appeal to the Court of Appeal, that Court quashed one of the findings made in the High Court but substituted an order under the Act having much the same financial effect.[3]  It also gave directions to the second respondent, who has been appointed as trustee of an associated family trust, concerning the sale of certain properties and distribution of the proceeds.[4]

   [1]      Gallagher v Rabson HC Wellington FAM-2007-091-892, 23 July 2010.

   [2]      Rabson v Gallagher HC Wellington CIV-2008-485-2279, 23 July 2010.

   [3]      Rabson v Gallagher [2011] NZCA 459.

   [4]      Rabson v Gallagher [2011] NZCA 669.

2. The applicant has now applied for leave to appeal to this Court.  His primary proposed ground is that the order and directions of the Court of Appeal unduly favour Ms Gallagher by giving her a priority right to payment notwithstanding that the eventual sale prices of all the properties are not yet known and those which have already been sold have realised less than was estimated.  The payments ordered to be made to Ms Gallagher are, however, on account of her overall entitlement and leave has been granted to any party to apply to the Court of Appeal for clarification of any matter related to its orders.  Mr Rabson would therefore be able to seek from the Court of Appeal an adjustment of its orders if there were to be a change of circumstances for which he bore no responsibility and, as a consequence, the orders would lead to an overpayment of Ms Gallagher.  We should add that it is not at this stage apparent that this may occur.  There is substance in the submissions of counsel for the first respondent that Mr Rabson may have misunderstood the determinations of the Courts below.

3. The proposed appeal raises no question of general or public importance.  It is concerned with the particular facts of this case.  Nor is there any appearance that a substantial miscarriage of justice has occurred.  The criteria for leave are not met.

Solicitors:
Mary Jeffcoat, Wellington for First Respondent
Buddle Findlay, Wellington for Second Respondent