Mathiesen v Mathiesen - [2015] NZCA 92

IN THE COURT OF APPEAL OF NEW ZEALAND

CA478/2013
[2015] NZCA 92

BETWEEN	GABRIELLE PAULETTE MATHIESEN Applicant
AND	JAN HENRICK MATHIESEN Respondent

Hearing:	16 March 2015
Court:	Randerson, Wild and French JJ
Counsel:	Applicant in person, accompanied by Messrs McNab and Marchant, the trustees of her trust (by AVL) No appearance for Respondent (abides Court's decision) No appearance for Official Assignee (also abides Court's decision)
Judgment:	25 March 2015 at 11 am

JUDGMENT OF THE COURT

AThe applications for an extension of time to appeal and to adduce further evidence on the proposed appeal are dismissed.
BThe applicant is to pay the respondent’s costs of the applications in the sum of $500.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

Three applications by Ms Mathiesen are for decision:
(a)an application filed on 19 February 2015 seeking, pursuant to r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules), an extension of time to appeal;
(b)an application pursuant to r 45 of the Rules, contained in the same document, seeking leave to adduce further evidence in support of the appeal; and
(c)an application, filed separately on 19 February, seeking leave to amend the grounds of appeal. This invokes r 34 of the Rules.
On 18 February Ms Mathiesen also filed an “application for a Judge to determine whether appeal as of right filed within 20 working days”. We will deal with that as part of application (a) – for an extension of time to appeal.

Background

On 5 August 2009, in a judgment dealing with relationship property, the Family Court ordered Ms Mathiesen to pay Mr Mathiesen $326,152.97.[1] What ensued is set out in the background section of this Court’s judgment of 22 May 2013 in GPM v JHM.[2] That judgment dismissed Ms Mathiesen’s appeal against a judgment of Chisholm J dismissing an application Ms Mathiesen had brought on 19 July 2012 for leave to appeal out of time against the judgment of the Family Court.[3] Subsequently, in a judgment delivered on 27 August 2013, the Supreme Court dismissed Ms Mathiesen’s application for leave to appeal against this Court’s judgment.[4]
[1]JHM v GPM FC Timaru FAM-2006-019-1475, 5 August 2009.
[2]GPM v JHM [2013] NZCA 166, (2013) 29 FRNZ 248 at [2]–[13].
[3]GPM v JHM [2012] NZHC 1776.
[4]GPM v JHM [2013] NZSC 84.
Ms Mathiesen did not satisfy the Family Court judgment.
On 11 June 2013, on the application of Mr Mathiesen, Associate Judge Matthews adjudicated Ms Mathiesen bankrupt in the High Court at Timaru. There was no appearance by or for Ms Mathiesen.
Ms Mathiesen was notified by her bank on 13 June that she had been adjudicated bankrupt. The following day, 14 June, she filed in the High Court at Timaru what she termed:
URGENT APPLICATION FOR AN INJUNCTION/STAY TO STOP THE SEALING AND PUBLICATION OF AN UNKNOWN JUDGE’S BANKRUPTCY ADJUDICATION AGAINST ME OF 11 JUNE 2013, NOTIFIED TO ME BY MY ANZ BANK 13 JUNE 2013,…

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 Mathiesen v Mathiesen

Details

AGLC: Mathiesen v Mathiesen [2015] NZCA 92
Case: [2015] NZCA 92
Decision Date: 25 March 2015 at 11 am

CaseChat Overview and Summary

In Mathiesen v Mathiesen, Gabrielle Paulette Mathiesen, the applicant, sought an extension of time to appeal a decision, as well as permission to adduce further evidence and to amend the grounds of appeal. The respondent, Jan Henrik Mathiesen, did not appear or make any submissions. The Court of Appeal was required to decide whether the applicant's applications should be granted. The central legal issue was whether the Court should allow the applicant to appeal out of time, as well as whether she could adduce further evidence and amend the grounds of appeal. The Court held that the applicant's proposed grounds of appeal had no merit, and thus there was no point in extending time to enable her to bring a hopeless appeal. The Court dismissed the applicant's application for an extension of time to appeal, as well as her application to adduce further evidence. The Court also held that the applicant did not require permission to amend the grounds of appeal, as appeal to the Court of Appeal is as of right. The Court declined to re-convene to deal with the concerns raised by the applicant's counsel. The Court ordered that the applicant pay the respondent's costs of the applications in the sum of $500.

Orders