Matthew v Harding

[2025] NZHC 784

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-54

[2025] NZHC 784

UNDER

Section 39 of the Property (Relationships) Act 1976 and rule 20.10 of the High Court Rules 2016

IN THE MATTER

of an appeal from a decision of the Family Court at Manukau

BETWEEN

JANET BETSY MATTHEW

Appellant

AND

DAVID LEWIS HARDING

Respondent

Hearing:

2 April 2025

Appearances:

R G Evans for appellant

A L Patterson for respondent

Date of judgment:

4 April 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 4 April 2025 at 2.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

R G Evans, Auckland

Thomson Wilson, Whangārei

MATTHEW v HARDING [2025] NZHC 784 [4 April 2025]

[1]                 As duty judge, I have Janet Matthew’s 10 January 2025 interlocutory application to stay enforcement of Judge A P Goodwin’s 13 December 2024 decision in the Family Court at Manukau,1 pending its appeal for hearing on 15 May 2025.

Background

[2]                 The Judge’s decision was made in the course of ongoing Property (Relationships) Act 1976 (the 1976 Act) proceedings between Ms Matthew and her former partner, David Harding.

[3]                 Under s 25(4), the Judge made an interim order for sale of relationship property in Auckland’s Māngere Bridge at which Ms Matthew lives (the sale order),2 as justified “on balance” to enable reduction of relationship debt,3 by payment of

$200,000 to each party from the proceeds of sale.4 But the Judge made no finding as to the overall quantum of relationship property assets and liabilities, which remains for determination. He noted the precarity of Mr Harding’s financial situation in wholly meeting a loan comprising relationship debt was matched by Ms Matthew’s emotional interest in the property which she could not maintain if required to contribute to the loan.5

Approach to applications for stay pending appeal

[4]Rule 20.10 of the High Court Rules 2016 provides:

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:

1      Harding v Matthew [2024] NZFC 12611.

2      At [10] and [61].

3      At [59]–[60].

4 At [62].

5      At [53]–[57].

(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.

[5]                 Absent stay, a successful party even in a court from which appeal lies to this Court may enforce the judgment as a benefit of that judgment in its favour. Thus, on application for stay, this Court must find a balance between a successful litigant’s rights to the fruits of a judgment and the need to preserve the position in case the appeal is successful:6 “[t]he object, where it can be fairly achieved, [is] to arrange matters … to do justice between the parties, whatever the outcome of the appeal may be”.7

[6]It is “well-settled” factors to be taken into account include:8

(a)if the appeal may be rendered nugatory by the lack of a stay;

(b)the bona fides of the applicant as to the prosecution of the appeal;

(c)if the successful party will be injuriously affected by the stay;

(d)the effect on any third parties;

(e)the novelty and importance of questions involved;

(f)the public interest in the proceeding; and

(g)the overall balance of convenience.

6      Keung v GBR Investment Ltd [2010] NZCA 396 at [11], citing Duncan v Osborne Building Ltd

(1992) 6 PRNZ 85 (CA) at 87.

7      New Zealand Insulators Ltd v ABB Ltd (2006) 18 PRNZ 459 (CA) at [13], citing Minnesota Mining & Manufacturing Co v Johnson & Johnson Ltd [1976] FSR 139; [1976] RPC 671 (CA).

8      Keung v GBR Investment Ltd, above n 6, at [11], citing Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd [1999] 3 NZLR 239, (1999) 13 PRNZ 48 (HC) at [9]. See also SRG Global Remediation Services (NZ) Ltd v Body Corporate 197281 [2022] NZCA 654 at [17].

The apparent strength or weakness of the appeal is an additional factor. I also have regard for the 1976 Act’s principles, including “questions arising under this Act about relationship property should be resolved as inexpensively, simply, and speedily as is consistent with justice”.9

[7]                 Importantly, such a ‘stay’ does not mean the court’s orders subject to appeal cease to have effect. ‘Stay of enforcement’ only means a successful party is prevented from having resort to remedies—for example, seizing or charging property or attaching money, or warrants to recover land or chattels—against non-performance of a court’s orders.10 ‘Enforcement’ is a distinct form of legal process to incentivise performance of a court’s orders,11 prompt and voluntary compliance with which generally is expected without resort to enforcement.12 Thus stay may be conditioned with security,13 again to incentivise ultimate performance if appeal is unsuccessful.

Discussion

[8]                 Ms Matthew’s bona fides are established by the appeal’s hearing next month. Mr Harding accepts Ms Matthew’s appeal will be rendered nugatory if stay is not granted, and would not  oppose  its  grant  if  made  conditional  on  payments  by  Ms Matthew to him referable to contended relationship debt.

[9]                 The difficulty with the latter proposition is, while it is undisputed the subject property is relationship property, the Judge only found $450,000 of a $702,000 loan (taken out by Mr Harding and secured against property Mr Harding alleges separately is his) was relationship debt. But the status of the balance has yet to be determined, as have those of other assets and liabilities. Mr Harding contends there are “many financial adjustments” to be made in his favour against any equal sharing presumption. Ms Matthew also has claims against assets he asserts are his separate property.14

9      Property (Relationships) Act, s 1N(d).

10     See, for example, District Court Act 2016, pt 10.

11     National Westminster Bank plc v Powney [1990] 2 All ER 416 (CA) at 428; referred to in Riddiford v New Zealand Law Society HC Wellington CIV-2005-485-879, 15 December 2005 at [16].

12     District Court Act, s 138(1), prohibiting commencement of any enforcement action for 48 hours after judgment or order without leave.

13     High Court Rules 2016, r 20.10(3).

14     Harding v Matthew, above n 1, at [59].

[10]              All the same, no substantial steps to progress sale of the property yet have been taken (a land agent having told Mr Harding on 13 January 2025 Ms Matthew “blocked us visiting the property and we need to see inside before we give you an in depth appraisal”, but such visit subsequently having occurred). Mr Harding continues to be paid outgoings in relation to it by Ms Matthew since June 2023 (but not otherwise earlier or for rent or in loan contribution).

[11]              Although it is not express in his notice of opposition, Mr Harding also says any stay should be conditional on Ms Matthew permitting access to the property to prepare it for sale. But the Judge’s order was “as per the application … as subsequently amended” and for draft orders to be filed;15 those filed orders expressly addressed access to the property. Stay presently is sought of enforcement of those orders.

[12]              The Family Court has yet to determine the status of the parties’ other property, and I am not prepared to condition any stay with a requirement for payments predicated on that prospective outcome. Neither am I prepared to condition any stay with any requirement that was made in the court below. In either case such would be to require performance of some part of the Family Court’s decision, which is subject to appeal.

[13]              But at issue before me only is if enforcement of that decision should be stayed. I am conscious the Family Court remains charged with determining the ultimate division of relationship property between Mr Harding and Ms Matthew. Accordingly, given the parties’ agreement Ms Matthew’s appeal would be rendered nugatory by the property’s prior sale, I only will order a stay of enforcement of the Judge’s decision.

Result

[14]              I order any enforcement of Judge A P Goodwin’s 13 December 2024 judgment and consequent orders is stayed, pending determination of Ms Matthew’s appeal.

15     At [62]–[63].

Costs

[15]              In my preliminary view, costs should fall for determination together with those on appeal. If the parties disagree, and cannot otherwise agree, costs are reserved for determination on short memoranda each of no more than five pages—annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate—to be filed and served by Ms Matthew within 10 working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.

—Jagose J