Mason v Hill

[2014] NZHC 3119

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2673 [2014] NZHC 3119

IN THE MATTER

of an appeal under s 174 Family

Proceedings Act 1980

BETWEEN

SKY TE RANGI MARIE MASON Appellant

AND

CHLOE ERICA HILL Respondent

Hearing:	4 December 2014
Appearances:	R C Knight for Appellant C F Allen for Respondent
Judgment:	8 December 2014

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 8 December 2014 at 2.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Lockhart Legal, Auckland

Toni Brown, Tauranga

Counsel:            R C Knight, Auckland

MASON v HILL [2014] NZHC 3119 [8 December 2014]

[1]      The Appellant, Mr Mason, seeks an order staying execution of a judgment of

Judge McHardy in the Family Court at Auckland, given on 12 September 2014.1

Mr Mason has appealed the judgment, which appeal is to be heard on 24 February

2015.

[2]      The application for stay is made pursuant to High Court Rules, r 20.10(2), which provides:

20.10   Stay of proceedings

(1)      An appeal does not operate as a stay—

(a)      of the proceedings appealed against; or

(b)      of enforcement of any judgment or order appealed against. (2)      Despite  subclause  (1),  the  decision-maker  or  the  court  may,  on

application,   do   any   1   or   more   of   the   following   pending

determination of an appeal:

(a)      order  a  stay  of  proceedings  in  relation  to  the  decision appealed against:

(b)      order  a  stay  of  enforcement  of  any  judgment  or  order appealed against:

(c)      grant any interim relief.

(3)      An order made or relief granted under subclause (2) may—

(a)      relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:

(b)      be subject to any conditions for the giving of security the decision-maker or the court thinks just.

[3]      The grounds on which the application is made are:

(a)       the  refusal  of  the  stay  would  render  Mr  Mason’s  appeal  rights

nugatory;

(b)      Ms Hill will suffer little prejudice by the granting of a stay; (c)          the grounds of appeal have substance; and

1      Hill v Mason [2014] NZFC 7334.

(d)      the overall balance of convenience favours the granting of a stay.

Background

[4]      Mr Mason and Ms Hill have two children and were in a de facto relationship between April 2008 and November 2009 and November 2012 and July 2013.2

[5]      There are several sets on proceedings on foot between the parties, including an application by Ms Hill for maintenance.  A judgment given by Judge Riddell in the Family Court at Hamilton, delivered on 13 November 2014, has some relevance to Mr Mason’s application for stay and I refer to it below.3   Judge Riddell’s judgment concerned proceedings under the Care of Children Act 2004 and itself has been appealed, by Ms Hill.

[6]      Judge McHardy ordered Mr Mason to pay Ms Hill interim maintenance of

$1,838 per week, with the first payment to be made on 19 September 2014.   The order was made pursuant to s 82(1) Family Proceedings Act 1980, which provides:

82       Interim maintenance

(1)       Where an application for a maintenance order … has been filed, any District Court Judge may make an order directing the respondent to pay  such  periodical  sum  as  the  District  Court  Judge  thinks reasonable towards the future maintenance of the respondent’s … de facto partner … until the final determination of the proceedings or until the order sooner ceases to be in force.

[7]      Mr Mason may seek to take a point on appeal as to the Judge’s jurisdiction to make the order for interim maintenance but, as I understand it from counsel, Ms Hill had filed an application for maintenance at the time the Judge made the order and may be eligible for such maintenance.  Accordingly I proceed on the basis that the

threshold requirements of s 82(1) were met at the material time.

2      There is some dispute between the parties as to the exact dates of their relationship, but that is immaterial for present purposes.

3      Hill v Mason DC [2014] NZFC 9196.

Discussion

[8]      There is merit in several of the submissions made by counsel for Mr Mason. First, I accept that refusal of a stay will require Mr Mason to continue to pay the sum ordered pending the hearing of his appeal and that, if he were then to succeed on appeal, it might well be some time before he were repaid, if ever.

[9]      Secondly, I accept Mr Mason’s submission that the outcome of the appeal may be affected by orders subsequently made by Judge Riddell.

[10]     On the face of his judgment, Judge McHardy arrived at the sum of $1,838 per week by including an allowance of $440 per week for Ms Hill’s rent.4    One of the orders made by Judge Riddell, however, was that Mr Mason pay the rent, up to a maximum of $700 per week, on a house in Tairua for Ms Hill and the couple’s two children.5   Accordingly, on the face of it, there is an overlap between the two orders, at least to the extent of $440 per week.

[11]     Thirdly, $800 of the weekly sum Judge McHardy ordered was in respect of Ms Hill’s legal expenses.  Counsel for Mr Mason submits that the extent to which the Court may order a party to make a contribution to the other’s ongoing legal expenses is the subject of Court of Appeal authority which the Judge’s order is said to contravene.

[12]     Despite these matters, I consider the overall balance of convenience favours declining this application.

[13]     First, Mr Mason’s appeal will be heard early in 2015.  If the Court on appeal reduces the amount that Mr Mason is required to pay, he will not have paid the greater amount for any significant length of time.  Mr Mason is wealthy, having won a very substantial sum on a “Big Wednesday” ticket, and so payment will not subject

him to financial hardship.

4      Hill v Mason, above n 1, at [51].

5      Hill v Mason, above n 2, at [225].

[14]     Secondly, I have considered whether some variation to the order made by the Judge would be appropriate pending the hearing of the appeal.   For instance, I considered whether it might be open to me to permit Mr Mason to pay some of the amount ordered into trust.  I am not satisfied, however, that the jurisdiction to grant interim relief provided for in r 20.10(2)(c) would permit such an order.  Moreover, on their face, each of Judge Riddell’s and Judge McHardy’s decisions is careful and thorough and I do not consider it would be prudent to interfere pending appeal.

[15]     Accordingly, I decline to grant a stay.

Costs

[16]     Counsel for Ms Hill advised that her client was in receipt of legal aid to allow her to oppose this application for stay.   I make an order for costs on a 2B basis against Mr Mason, given that he has failed in this application.

..................................................................

M Peters J