McConkey v Clarke - [2021] NZCA 334

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA474/2019
[2021] NZCA 334

BETWEEN	GEMMA LYNETTE MCCONKEY Applicant
AND	JODY DAWN CLARKE SHARON MAY CLARKE Respondents

Counsel:	Appellant in Person G Mason for Respondents
Judgment: (On the papers)	26 July 2021 at 10 am

JUDGMENT OF COURTNEY J

The application for review of the Deputy Registrar’s decision is declined.

____________________________________________________________________

REASONS

Introduction

In a decision delivered on 2 April 2020 this Court declined Gemma McConkey’s application for leave to bring a second appeal.[1] The underlying proceedings related to Ms McConkey’s claim for the division of relationship property following the death of Mr Clarke, with whom she claimed to have been in a de facto relationship. A costs order was made in favour of the respondents for a standard application on a band A basis with usual disbursements.
[1]McConkey v Clarke [2020] NZCA 83, [2020] NZFLR 207.
In June 2021 the respondents sought to seal the judgment. Ms McConkey did not agree to the judgment being sealed and gave a number of reasons for her objection. A Deputy Registrar considered that the matters she raised were not relevant to the decision to seal the judgment. The Deputy Registrar advised that she would seal the judgment, subject to Ms McConkey’s right to seek a review of her decision to do so.
Ms McConkey applied for a review of the Deputy Registrar’s decision.[2] That application has been referred to me.
[2]Court of Appeal (Civil) Rules 2005, r 5A(3).
At a late stage Ms McConkey provided the Registry with a judgment delivered in proceedings brought by the administrator of the estate of Ms McConkey’s former lawyer to recover legal fees. The judgment required Ms McConkey to provide security for costs in respect of her counterclaim.[3] Also provided was Ms McConkey’s affidavit in opposition to the application for security for costs. I have reviewed those documents but they do not assist in the determination of the current review of the Deputy Registrar’s decision.

Background

[3]Takarangi v McConkey [2021] NZHC 1813.

The judgment for sealing was received on 14 June 2021. The Deputy Registrar emailed a copy of the judgment for sealing to Ms McConkey inviting any comments by 18 June 2021 and indicating that the judgment would be sealed after that date.
Ms McConkey responded. She did not accept the claim for costs on submissions/memoranda that she had filed. She wished to have her lawyer respond and provided the Court with his email address. Ms McConkey’s lawyer, Mr Josephson, did not contact the Court. Instead, on 18 June 2021 Ms McConkey emailed, advising that she did not agree to the judgment being sealed “due to urgent matters my lawyer will be trying to deal with in the High Court in Palmerston North date of 18-6-2021”. She went on to explain that, although she could not discuss what those matters were, they concerned the distribution of Mr Clarke’s estate.
On 18 June 2021 the Deputy Registrar replied,…

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 McConkey v Clarke

Details

AGLC: McConkey v Clarke [2021] NZCA 334
Case: [2021] NZCA 334
Decision Date: 26 July 2021 at 10 am

CaseChat Overview and Summary

This appeal involves Gemma McConkey who sought leave to appeal against a decision declining her application for leave to appeal a decision relating to the division of property following the death of Jody Clarke, with whom she claimed to have been in a de facto relationship. The Court of Appeal declined Ms McConkey's application for leave to appeal. The respondents then sought to seal the judgment. The Deputy Registrar decided to seal the judgment but granted Ms McConkey a right to seek a review of that decision. Ms McConkey applied for a review of the Deputy Registrar’s decision. The application for review is declined. The Court was satisfied that the Deputy Registrar correctly considered the issues before her. The Deputy Registrar correctly concluded that the issues raised by Ms McConkey did not provide grounds to refuse to seal the judgment. The Court found that Ms McConkey's objections to the amount of time claimed by the respondents to have been spent on preparing the memorandum in opposition and for preparing for the hearing were without merit. The Court found that the respondents' failure to consult with Ms McConkey as to the form of the judgment and any order as to costs was not a basis for refusing to seal the judgment. The Court found that the Deputy Registrar had provided Ms McConkey with an opportunity to comment on the form of the judgment to be sealed and to raise any objections to the sealing of the order in the form proposed. The Court was satisfied that the purpose of the rule was satisfied.

Orders