Mason v Shamoun
[2018] NZHC 2802
•1 November 2018
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD(REN).
THIS IS AN ANONYMISED VERSION OF THE JUDGMENT AND MAY BE PUBLISHED IN THIS FORM
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV 2018-488-000061
[2018] NZHC 2802
UNDER Section 39 of the Property (Relationships) Act 1976 AND
IN THE MATTER
Of an application for leave to appeal out of time a decision of the Family Court at Whangarei
BETWEEN
MASON
Appellant
AND
SHAMOUN
Respondent
Hearing: 10 October 2018 Appearances:
Ms Mason in person, Appellant
Mr Shamoun in person, Respondent
Judgment:
1 November 2018
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 01 November 2018 at 3pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
[1] Ms Mason seeks leave to appeal out of time a decision of Judge M Hunt in the Family Court at Whangarei on 31 January 2018 finalising the division of relationship property between Ms Mason and Mr Shamoun, Ms Mason’s former husband.
[2] The issue for determination is whether the circumstances of the delay, the conduct of and prejudice to the parties, the merits of the proposed appeal and the overall interests of justice warrant leave being granted.
[3] Ms Mason and Mr Shamoun appeared before me in person at the High Court in Whangarei on 10 October 2018. Neither was represented by counsel, although both had been represented at earlier stages of the proceeding.
[4] Because the appeal had been scheduled as a back-up fixture to another hearing that was still in progress, only an hour could be allocated to the hearing of Ms Mason’s application. However, both Ms Mason and Mr Shamoun filed affidavits and Ms Mason also filed comprehensive submissions before the hearing. Both Ms Mason and Mr Shamoun had the opportunity to address me at the hearing on the issues of concern to them. I am satisfied that the parties had an adequate opportunity to put their views to the Court.
Relevant background
[5] The relationship between Ms Mason and Mr Shamoun began in the early 1990s and they married in 1995. The parties separated over six years ago – although the date of separation is in dispute. They have two children, a daughter, born 23 April 2001, and a son, born 27 February 2008.
[6] The relationship between Ms Mason and Mr Shamoun since their separation has been acrimonious. On 9 March 2017, Ms Mason obtained a protection order against Mr Shamoun. There are separate on-going proceedings regarding the care of the children.
[7] Since their separation, Ms Mason and Mr Shamoun have each been living in properties purchased jointly in their names. Ms Mason and the children live at Lovatt Crescent, Whangarei. Mr Shamoun lives in a property on Ngunguru Road in
Ngunguru. The focus of Ms Mason’s application is on the disposition of these properties in accordance with Judge Hunt’s decision of 31 January 2018.
[8] Ms Mason and Mr Shamoun also have property in the United Kingdom, the division of which has yet to be settled. However, the current proceeding deals only with property in New Zealand.
Judge Hunt’s decision of 31 January 2018
[9] On 30 January 2018, there was a hearing before Judge Hunt in the Family Court in Whangarei that had been set down for the purpose of finalising the division of the relationship property. Judge Hunt had directed that valuations of the Lovatt Crescent and Ngunguru Road properties be obtained in advance of the hearing. Mr Shamoun obtained valuations of both properties by Telfer Young, which valued the Lovatt Road property at $600,000 and the Ngunguru Road property at $585,000. Ms Mason did not obtain separate valuations.
[10] Ms Mason did not attend the hearing on 30 January 2018. She filed a certificate from her doctor advising that she was suffering from heightened anxiety because of the court cases and the behaviour of Mr Shamoun and would be unable to attend. However, Ms Mason’s counsel, Ms Boyle, was at the hearing.
[11] Because of Ms Mason’s absence, Judge Hunt adjourned the hearing on 30 January 2018 until the following afternoon. In his Minute adjourning the hearing, Judge Hunt said that, unless there was good reason [not] to do so, he intended to dispose of the case the following day and that his then thinking was to vest each of the properties in the party occupying them – Lovatt Crescent in Ms Mason and Ngunguru Road in Mr Shamoun, with an adjustment to compensate Mr Shamoun for the greater value in the Lovatt Crescent property, and further adjustments for outstanding debts.
[12] Ms Mason did not attend the resumed hearing on 31 January 2018. In his oral judgment of 31 January 2018, Judge Hunt noted that Ms Boyle was in attendance and had taken instructions from Ms Mason on the indications given by the Judge the previous day, and that Ms Boyle had filed a memorandum which recorded Ms Mason’s understanding that, in accordance with the Judge’s indications, the properties would
vest in the parties where they were living and that adjustments would be made for debts and valuations.
[13]Judge Hunt then recorded:
[5] In the light of that memorandum and in light of my view that this matter has come to a point where it clearly needs to be determined and where the legal issues are in fact quite straightforward, although I do not underestimate the difficulty for the parties, in particular [Ms Mason], I have proceeded with what is effectively a submissions only hearing from the parties today and this decision is to finalise the classification and division of relationship property, although the implementation of that division must necessarily be delayed because there are some maters beyond my control.
[14] Before making a final decision on the division of the real property, Judge Hunt dealt with a number of other issues including the following:
(a)Visa debt of $6,831.06: in the absence of evidence showing the balance as at separation or an understanding of how the sum owing had been accrued, the Judge could not conclude it was a debt owing at separation and eligible for inclusion in the relationship property pool, so he ruled it was a separate debt owed by Ms Mason;
(b)YouMoney account overdraft of $1,498.32: relationship property;
(c)Post-separation contributions: no details had been provided as directed by the Court and could not be upheld;
(d)Reimbursement for valuation expenses incurred by Mr Shamoun: agreed Mr Shamoun should be reimbursed for one half of the cost of obtaining the valuations;
(e)Adjustment to reflect difference in value of the two properties: Ms Mason to pay Mr Shamoun $7,500.
[15] Judge Hunt then proceeded to make orders vesting the Lovatt Crescent property in Ms Mason and the Ngunguru Road property in Mr Shamoun. He recorded specifically that these were final orders.
[16] However, because the bank held security over both properties securing loans totalling $224,093.31 owed jointly by Ms Mason and Mr Shamoun, Judge Hunt gave Ms Mason and Mr Shamoun three months in which each was to make separate arrangements to secure their half of the sum owed. The Judge directed that by 30 April 2018, Ms Mason and Mr Shamoun were each to advise the Court if they had been successful and, if not, whether further directions were required.
[17]Judge Hunt’s memorandum of 11 May 2018
[18]In a memorandum dated 11 May 2018, Judge Hunt recorded that:
(a)In response to a submission from counsel for Ms Mason that anticipated that the matter of the property values was still a live issue, the valuation evidence that was before the Court in January 2018 had been accepted and orders made accordingly;
(b)The matter of value would not be revisited;
(c)Counsel for Mr Shamoun and counsel for Ms Mason had advised the Court that Mr Shamoun and Ms Mason had each secured finance;
(d)Final orders had issued vesting the respective properties in each party;
(e)All that was required was for each party to refinance half the debt and for Ms Mason to pay the adjustment in accordance with his decision and final orders were to issue accordingly;
(f)In default of any agreement between the parties, settlement by way of refinance of the securities and vesting of the properties in their respective parties was to occur on 22 June 2018.
Relationship property orders of 19 May 2018
[19] Following Judge Hunt’s memorandum of 11 May 2018, relationship property orders were made on 19 May 2018 providing that:
(a)The Ngunguru Road property vested in Mr Shamoun;
(b)The Lovatt Crescent property vested in Ms Mason;
(c)Mr Shamoun and Ms Mason were jointly liable for one half of the monies owed to the BNZ and secured over the Ngunguru Road and Lovatt Crescent properties;
(d)Each party was to secure sufficient funding to discharge the securities over the Ngunguru Road and Lovatt Crescent properties and replace it with security for each of them securing one half of the indebtedness;
(e)The YouMoney account with an overdraft of $1,489.32 was a relationship debt to be repaid on settlement of the mortgage;
(f)Ms Mason was to pay Mr Shamoun $7,5000 as the difference in value between the Ngunguru Road and Lovatt Crescent properties;
(g)Ms Mason was to pay Mr Shamoun $856.50 being one half of the valuation fees.
[20]The orders were sealed on 23 May 2018.
Ms Mason’s appeal
[21] On 21 June 2018, Ms Mason filed a without notice application for leave to appeal Judge Hunt’s decision out of time. In accordance with directions made by Toogood J on 27 June 2018, the application was served on Mr Shamoun who filed a notice of opposition on 13 July 2018.
[22]The grounds of appeal in Ms Mason’s application are, in effect, that:
(a)The Ngunguru Road property was significantly undervalued which made Judge Hunt’s decision unfair and unjust to Ms Mason;
(b)The money owed on the YouMoney account did not take into account the interest paid by Ms Mason for seven years (May 2011 to June 2018) at $35.00 per month;
(c)There was no provision in Judge Hunt’s ruling on the reimbursement of debts to take account of the financial disadvantage to Ms Mason from her being medically unfit to attend the hearing on 31 January 2018.
[23]In his notice of opposition dated 13 July 2018, Mr Shamoun said that:
(a)Ms Mason’s appeal is 113 days out of time;
(b)He would be severely prejudiced if leave were granted to extend the time period for filing a notice of appeal.
Considerations governing application
[24] As Ms Mason said in her submissions, the considerations governing the application for leave are set out in the Court of Appeal’s decision in My Noodle Ltd v Queenstown-Lakes District Council.1 Those considerations are:
(a)The length of the delay and the reasons for the delay;
(b)The conduct of the parties;
(c)Any prejudice caused by the delay;
(d)The merits of the appeal;
(e)Whether the appeal raises any issues of public importance;
(f)Whether granting leave would be in the overall interests of justice.
1 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 (CA).
The length of delay and reasons for the delay
[25] The length of the delay is significant, over 70 working days, given that the appeal period of 20 working days under r 20.4 of the High Court Rules 2016 expired on 1 March 2018.
[26]In her affidavits and submissions, Ms Mason explains the delay as follows:
(a)She had been unable to attend the hearing on 30 and 31 January 2018 because of her medical conditions;
(b)Her inability to attend was attributable in part to post traumatic stress disorder symptoms she was experiencing which affected her ability to cope with the stresses of the various court processes then in train as well as everyday household tasks;
(c)This condition stemmed from long term abuse by Mr Shamoun against whom she has been granted a protection order and in respect of which she has been having on-going treatment;
(d)Her primary focus has been on providing a safe environment for her children who have been traumatised by their experiences;
(e)Difficulties in securing finance to cover her share of the mortgage owing on the properties;
(f)It was not until she sought financing that she realised the full impact of the decision on herself and her children;
(g)On 27 April 2018, her father suffered a heart attack.
[27] In support of some of the above points, Ms Mason produced letters from her doctor, an orthopaedic therapist, an outreach social worker from the Tryphina Women’s Refuge, and a counsellor, as well as a copy of the protection order.
[28] Ms Mason also points out that the while the decision was made on 31 January 2018, it provided a further three-month period in which she and Mr Shamoun were to obtain finance to secure their half shares of the loans and that the final relationship property orders giving effect to Judge Hunt’s decision were not made until 19 May 2018 and sealed on 23 May 2018.
[29] Ms Mason also says in her affidavit and her submissions dated 7 August 2018 that she is unable to finance half the outstanding debt and secure it against the Lovett Crescent property as she is unable to pay the Visa bill and that she is not able to pay Mr Shamoun $8,356.50 as ordered by Judge Hunt.
[30] While I recognise the stresses and difficulties with which Ms Mason has had to cope, and the impact of these on her and her children, some of the matters to which she points took place before Judge Hunt’s decision of 31 January 2018 or after the expiry of the appeal period on 1 March 2018. Strictly speaking, therefore, they do not explain or justify the delay.
[31] More significantly, one of the key items of valuation evidence Ms Mason has produced in support of her claim that the Ngunguru Road property has been significantly undervalued is dated 30 January 2018 and was sent to her by email of the same date. Accordingly, it is not only not fresh evidence but evidence that Ms Mason could have produced at the hearing on 31 January 2018 or in support of an appeal lodged within the 20 working day appeal period.
[32] For these reasons, I do not consider Ms Mason’s explanations of the delay to be compelling. To the contrary, I would usually consider inaction for over four months on the valuation evidence as counting against Ms Mason. However, given the stresses that Ms Mason has been under and the impact that she and the medical experts say this has had on her decision-making both before and after Judge Hunt’s decision, I do not consider that the delay factor should determine Ms Mason’s application.
The conduct of the parties
[33] Ms Mason cites the Protection Order and the on-going Care of Children Act proceedings in support of her implicit submission that Mr Shamoun’s conduct has been
wanting. I am in no position to assess those matters; they are or have been the subject of separate court processes. The relevant conduct in this case relates to the resolution of the relationship property issues.
[34] It is apparent that Mr Shamoun has been keen to bring about a resolution of the relationship property issues; he obtained at his own cost the Telfer Young valuations which formed the basis of Judge Hunt’s decision of 31 January 2018. He offered at the hearing before me on 10 October 2018 to forego the adjustment of $7,500 that Judge Hunt had ordered to offset the higher valuation attributed to the Lovatt Crescent property as that would expedite a final result.
[35] On the other hand, Mr Shamoun says that Ms Mason has continually sought to delay a resolution of these matters and that his health and well-being have deteriorated as a result of being unable to see his children and because of financial hardship resulting from Ms Mason’s constant delays in finalising the property issues.
[36] Both Ms Mason and Mr Shamoun addressed me on these matters at the hearing on 10 October 2018. Each accused the other of conduct that caused the delay. On the evidence before me, I am in no position to reach a firm conclusion one way or another on this factor. Nor is it necessary to do so because of the view I take on the merits of the appeal.
Any prejudice caused by the delay
[37] Ms Mason says Mr Shamoun will suffer no prejudice from the delay caused by granting her leave to appeal because the Ngunguru Road property has vested in him and he is in residence there. Mr Shamoun, on the other hand, says further delay will severely prejudice him because he is suffering financial hardship and on-going legal costs.
[38] Despite Ms Mason’s submissions, I accept that the delay is causing prejudice to Mr Shamoun. He is looking to finalise his affairs. He is entitled to some certainty in what is likely to be one of his most significant assets.
The merits of the appeal
[39] The focus of Ms Mason’s application is the value of the Ngunguru Road property.
The valuation of the Ngunguru Road property
[40] Ms Mason says that the difference between the Telfer Young valuation of the Ngunguru Road property and the other evidence of market value of the property that she has obtained is too large to ignore and she asks that the Court applies a fair and just value. Ms Mason also says that she is not in a financial position to obtain independent valuations of the two properties.
[41]The evidence that Ms Mason adduces in support of her application is:
(a)A market valuation of the Ngunguru Road property which Peter Vink of RayWhite provided to Ms Mason on 30 January 2018 which states Mr Vink’s belief that the market value of the property would sit between
$675,000 and $695,000;
(b)Valuation evidence provided to Ms Mason from Mr Ronald Yam of the Bank of New Zealand on 8 June 2018 that states that, in January 2018, the estimated value of the Ngunguru Road property is $700,000 in a value range of $580,000 to $800,000, and that the estimated value of the Lovatt Crescent property is $480,000 in a value range of $400,000 to $560,000;
(c)Ms Mason’s assertion in her affidavit sworn on 21 June 2018 that she had had “numerous conversations” with Mr Mike Nyssen of Telfer Young who agreed with her that the valuation of the Ngunguru Road property at the beginning of 2018 would be substantially higher than that stated in the earlier Telfer Young valuation.
[42]There are significant problems with this evidence.
[43] First, Mr Vink’s report is not a valuation of Ngunguru Road property. In its own terms, it is a comparative market analysis that provides comparative information of what other properties in the area have sold for. It does not assess the specific circumstances of the Ngunguru Road property and the other properties in the report other than their addresses and key parameters such as capital value, land value, floor area, when sold and at what price. Importantly, the report does not take into account the condition or history of the properties or their development potential.
[44] Mr Vink says that, based on recent sales over the previous 12 months and taking into account demand for properties such as this on this waterfront strip, he believed the market value of the property would sit between $675,000 and $695,000. However, the comparative information he provided shows there was a wide variation in value of properties sold, even among properties on Ngunguru Road facing the water. At one end of the range, a property at 1965 Ngunguru Road sold for $1,410,000 on 21 December 2017, while at the other end, a property at 1909 Ngunguru Road sold for
$560,000 on 24 March 2017 and another at 2405 Ngunguru Road sold for $555,000 on 31 January 2017.
[45] All of these properties had a land area of at least 800 square metres, similar to the property now vested in Mr Shamoun. All had floor areas larger than Mr Shamoun’s property. The value of the improvements on the latter two properties was higher than the value of the improvements on Mr Shamoun’s property. I also note that Mr Shamoun said at the hearing on 10 October 2018 that his property is not in a state of good repair.
[46] For these reasons, there is a need for caution in reaching a view on the value of the Ngunguru Road property based on a comparative analysis and in the absence of a full valuation.
[47] Secondly, the valuations provided by the BNZ were provided on 8 June 2018, well after Ms Mason’s counsel had advised the Court that Ms Mason had secured the finance necessary to meet her half share of the loans for the two properties. This, as well as the date of Mr Vink’s comparative analysis, casts doubt on the veracity of Ms
Mason’s assertions that she only became aware of the difference in values at the time she sought finance from the BNZ.
[48] Thirdly, the information Mr Yam provided to Ms Mason falls short of being a valuation of either the Lovett Crescent property or the Ngunguru Road property. In his email to Ms Mason of 8 June 2018, Mr Yam calls it a “valuation pull”. It uses fewer parameters and has less information than the comparative analysis provided to Ms Mason by Mr Vink.
[49] Fourthly, the information that Ms Mason recounts of her conversations with Mr Nyssen of Telfer Young is not only hearsay but lacking probative information as to the market value of the Ngunguru property as at January 2018.
[50] For all these reasons, I do not consider the valuation information adduced by Ms Mason provides an adequate basis for concluding that the Telfer Young valuation obtained by Mr Shamoun may have been so wrong as to mean that the relationship property division ordered by Judge Hunt was unfair or unjust to Ms Mason.
[51] While I have taken into account Ms Mason’s statement that she could not afford to obtain an independent valuation of the properties, in the absence of compelling evidence that suggests that the Telfer Young valuations were demonstrably wrong, I assess the prospects of Ms Mason succeeding on this ground of her appeal as weak.
The other grounds of appeal
[52]In her notice of appeal, Ms Mason raises two other grounds of appeal:
(a)The sum owed on the YouMoney account did not take into account the interest paid by Ms Mason for seven years;
(b)The financial disadvantage she suffered by being medically unfit to appear at the hearing.
[53] At the hearing on 10 October 2018, Ms Mason also sought to revisit the issue of the Visa debt which Judge Hunt had ruled was separate debt owed by Ms Mason.
[54]None of these grounds has merit:
(a)A judge can only make decisions on the basis of the information before him or her. The information about interest paid on the YouMoney account could have been provided before or at the hearing. Moreover, the amount at issue – $2,940 – falls far short of justifying the time and cost of a High Court appeal.
(b)Ms Mason has offered no evidence to substantiate the claimed financial disadvantage of not attending the hearing on 31 January 2018 other than to suggest that she might have secured a different result if she had been present. Of itself, that suggestion is not persuasive or sufficient.
(c)The Visa debt has been ruled on by Judge Hunt and is not part of Ms Mason’s appeal. In addition, in ruling on the Visa debt of $6,831.06 the Judge had limited information, with the only financial statement being the debt owing at 7 July 2015 and no information as to the size of the debt at the date of separation. As a result, the Judge could not conclude it was a debt owing at separation and eligible for inclusion in the relationship property pool. Moreover, the sum claimed – $3,415.53
– again falls far short of justifying the time and cost of a High Court appeal.
Public importance of the appeal
[55] Ms Mason does not argue that the appeal raises an issue of general or public importance that warrants it being heard. None is disclosed in the evidence before me.
Overall interests of justice
[56] My overall assessment of where the interests of justice lie is that there is no sound basis for granting leave to Ms Mason to bring her appeal out of time. Leaving aside the extent of and the reasons for the delay and the conduct of the parties, I am not satisfied that there is sufficient merit to Ms Mason’s appeal to warrant the delay inherent in granting leave to appeal out of time. At best, Ms Mason has raised the
possibility that the Ngunguru property may be worth more than the sum for which it was valued by Telfer Young in 2017. That is possible with any valuation. I am also satisfied that to grant leave would cause unwarranted prejudice to Mr Shamoun who is entitled to finality in the division of the relationship property, given that it is at least six years since the parties separated.
[57] I acknowledge the difficulties with which Ms Mason has been dealing and I do not minimise them in any way. Judge Hunt was also careful to take these matters into account. I also acknowledge the financial difficulties that Ms Mason says she faces in financing her share of the security over the properties. However, these are not reasons for further delaying the division of the relationship property.
[58] Moreover, and notwithstanding the difficulties and stresses pointed to by Ms Mason in her affidavits and submissions, the reality is that Ms Mason was aware of the direction of Judge Hunt’s thinking regarding the division of the property as at 31 January 2018. That awareness if not acceptance was conveyed by her counsel both in person and through the memorandum of Ms Mason’s counsel filed with the Court on her behalf. Judge Hunt made his decision on that basis. I do not consider the process or the decision resulted in an injustice to Ms Mason, regardless of the fact she was not present at the hearing. Moreover, the interests of justice require finality as well as fairness. There comes a time when decisions have to be accepted, however, unpalatable that might be.
Result
[59]The application for leave to appeal out of time is dismissed.
[60] However, in an effort to encourage Ms Mason to accept this result, and taking up Mr Shamoun’s offer to forgo his share of half of the differential in value between the Ngunguru property and the Lovett Crescent property, I set aside the direction in Judge Hunt’s decision of 31 January 2018 and the relationship property orders made on 19 May 2018 that Ms Mason must pay Mr Shamoun the sum of $7,500, being half the differential of the value in the properties as assessed by Telfer Young. In all other respects, Judge Hunt’s decision and the relationship property orders stand.
[61]Because neither party was represented by counsel, I make no orders as to costs.
G J van Bohemen J
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