McDonald v MacDonald
[2012] NZHC 2569
•4 October 2012
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV 2012-470-534 [2012] NZHC 2569
BETWEEN STEPHEN COLL MACDONALD Appellant
ANDCHRISTINE JOY MACDONALD Respondent
Hearing: 4 October 2012
Counsel: S C MacDonald, in person, Appellant
A Bean for Respondent
Judgment: 4 October 2012
(ORAL) JUDGMENT (NO. 2) OF HEATH J
Solicitors:
Patterson Law, PO Box 283, Kaitaia
Copy to:S C MacDonald, Appellant
MACDONALD V MACDONALD HC TAU CIV 2012-470-534 [4 October 2012]
Introduction
[1] Mr MacDonald applies for an extension of time to appeal against a judgment given in the Family Court at Opotiki on 30 May 2012.1 The application was made on 13 July 2012, on the grounds that a “hard copy of the full judgment” was not made available to Mr MacDonald until 16 June 2012.
[2] Mr and Mrs MacDonald were married on 11 October 1980. They separated on 30 September 2008. At that time they owned a home with surrounding land and an adjacent kiwifruit orchard. There were also other assets owned by them. Some four years later, relationship property issues remain undetermined. Ms MacDonald’s application for orders dividing relationship property was first made on 22 December
2008. There have been fluctuations in the value of the properties since that time. Indeed, an auction to which I shall refer later, resulted in the property being passed in because no bids were available above the market value suggested by a registered valuer.
[3] The judgment of 30 May 2012 concerned an application by Ms MacDonald to vary terms of a consent order made on 20 October 2009. That order is said to have been made after a settlement conference on that day. Mr MacDonald disputes the terms of the consent order and asserts that it does not reflect any agreement that might have been reached on the day. Nevertheless, that is not an issue that has been squarely raised before the Family Court for determination at this stage. The orders made by Judge Wills on 30 May 2012 were designed to allow the property to be sold by auction at 1pm on 19 July 2012.
[4] At the same time that he filed his application or an extension of time to appeal, Mr MacDonald sought a stay of the judgment to prevent the auction from proceeding. That application was heard by telephone before me in Rotorua on 18
July 2012. In a judgment given at 9am the following morning, the application was
dismissed,2 for reasons to which I refer later.3 Although Mr MacDonald does not
1 CJM v SCM [2012] NZFC 3896.
2 MacDonald v MacDonald [2012] NZHC 1758.
accept this, there is a coincidence between the date of filing and the date of the proposed auction that suggests the latter was the catalyst for both the stay and the extension of time applications.
[5] On 28 August 2012, Duffy J heard from the parties at a case management conference.4 By that time, Mr MacDonald had also filed an application to adduce additional evidence on appeal. There were also disputes about the amount of security for costs to be fixed.
[6] Duffy J directed three issues be determined at today’s hearing:
(a) The application for leave to appeal out of time.5
(b) If leave were granted:
(i)The application for leave to adduce further evidence on appeal6 and
(ii) Fixing of security for costs on the appeal.7
Application for leave to appeal out of time
[7] For reasons which will become apparent, I take the view that the issues can be dealt with simply on the application to extend time to appeal. That is because of intervening events, as well as the circumstances in which the late application was made and the overall merits of the application.
[8] Rule 20.4 of the High Court Rules provides that any appeal must be brought within 20 working days after the decision from which it is brought.8 That time began
to run on 31 May 2012. This Court has jurisdiction to extend the time for appealing
3 See para [14] below.
4 MacDonald v MacDonald HC Tauranga CIV 2012-470-534, 28 August 2012 (Minute).
5 Ibid, at para [12].
6 Ibid, para [1].
7 Ibid, paras [6] and [7].
8 High Court Rules, r 20.4(2)(b).
where an enactment conferring a right to appeal does not limit the time within which it may be brought.9 The current appeal, if permitted, would be brought under s 39 of the Property (Relationships) Act 1976, a statute that does not expressly stipulate a time for bringing an appeal. Therefore, jurisdiction exists if Mr MacDonald can make out a case for the exercise of the discretion.
[9] There are two issues of importance in determining whether time should be extended to allow the appeal to proceed. The first is whether there is a satisfactory explanation for the delay. The second is whether some material injustice would likely be caused to Mr MacDonald if leave were refused.
[10] As to the first of those, Mr MacDonald has deposed that he did not file an appeal in time because a “hard copy” of the full judgment was not available to him until 16 June 2012. To support that contention, he has annexed to his affidavit an exchange of email communications between himself and the Registrar of the Family Court at Opotiki. That correspondence suggests that a copy of the judgment had been sent on 12 June 2012 to Mr MacDonald (by email) but that not all pages may have been scanned properly. The email communications do not include anything relating to an earlier provision of the judgment, either by mail or by email. There is no evidence of steps taken by Mr MacDonald to procure a full copy of the judgment from the Registrar at any earlier time, if the Registrar did, as is noted on the judgment, forward it contemporaneously to Mr MacDonald by email.
[11] On the face of it, the explanation for the delay is unsatisfactory. There is much to be said for the proposition that the application to appeal was linked to the timing of the proposed auction on 19 July 2012. That gave Mr MacDonald a mechanism by which he could seek to stay the orders made by Judge Wills. Nevertheless, having regard to Mr MacDonald’s denial of that motivation today, while I do not intend to determine this application based on such an inference, I do take into account the fact that, even after receipt of the written judgment, a period of almost one month passed before application was made.
[12] On the second point, I am not persuaded that there would be a miscarriage of justice if Mr MacDonald were not allowed to appeal. The auction did not proceed to sale on 19 July 2012. That means that the orders made by Judge Wills will require some adjustment or reconsideration to meet contemporary market needs. I am told by both Mr MacDonald and Ms Bean, for Ms MacDonald, that there has already been a hearing in the Family Court at which an offer on the home below valuation was discussed. That hearing has been adjourned to 15 October 2012, so that the issues before me can be determined first. It is clear that a reassessment of realisation of the properties is required. Mr MacDonald will have the opportunity to put forward any proposals to purchase the property, if available finance can be established.
[13] In addition, there is also the fundamental question on which Mr MacDonald seems to have based his intended appeal. That relates to his assertion of the non- binding nature of the recorded consent order which was based on an agreement allegedly made at the settlement conference in November 2009.
[14] That is an issue with which I dealt in giving judgment on the stay application. At that time, I also expressed views on the merits of the proposed appeal. I said:10
[18] The merits turn primarily on Mr MacDonald’s assertions that a miscarriage of justice will arise if the property is sold at auction. He has suggested that the orders made in the Family Court did not reflect the agreement reached at the settlement conference. Subject to his ability to bid successfully at the auction, it is clear that he will lose the ability to own either the family home or orchard.
[19] The most critical aspect of the application concerns Mr MacDonald’s attack on the terms of the order made following the settlement conference, which formed the basis for the judgment of Judge Wills. There is nothing in Judge Wills’ judgment to suggest this point was raised before her. It is inconceivable that, had this point been to the forefront of Mr MacDonald’s argument, she would not have dealt with it in some way.
[20] To the contrary, exhibit P to Mr MacDonald’s affidavit of 30 June
2011 suggests that he was aware of the terms of the arrangement, as at 6
November 2009. The exhibit is a letter from a Banking Consultant at the
National Bank in Whakatane in which, subject to conditions, approval of a lending application of up to $180,000 was granted to enable Mr MacDonald
to acquire the property. The approval was valid for 120 days. Unless Mr
MacDonald was aware of the arrangements made in the Family Court, there would have been no purpose in him obtaining that confirmation, at that time.
[21] The only evidence that Mr MacDonald had raised concerns about the
20 October 2009 orders arose out of a Minute issued by Judge Geoghegan, which I have not seen. In an email to someone at the Court (exhibit Q to the
affidavit of 30 June 2011) Mr MacDonald asserts that the Judge said that the
agreement was handwritten but adds that he was not given the opportunity to check it before it was handed to the Judge. He alleges that it was written up
by Ms MacDonald’s former lawyer and, after he saw a typed copy (around
16 November 2010), he thought “some things have been added and some things left out on what was agreed”. There is no detail to indicate the materiality of any of these issues. The absence of any suggestion of material differences would explain why Mr MacDonald did not raise this issue forcefully before Judge Wills.
[22] In my view, a stay is not justified. The parties have now been separated since 30 September 2008 and, nearly four years later, property issues remain unresolved. For a “just division of relationship property” to be achieved, it is necessary for the properties to be sold. If Mr MacDonald had had the ability to raise money to acquire the properties, I have no doubt that he would have made an appropriate offer much earlier. The time for further delay has passed.
[23] The merits of Mr MacDonald’s fundamental claim are so weak that an order is not justified, notwithstanding the likely sale of the properties at auction. In my view, the overall balance of convenience and justice of the case do not favour a stay. The auction will proceed tomorrow.
[15] My assessment of the weakness of the proposed challenges to the orders made by Judge Wills is a ground on which an extension of time ought to be refused, coupled with the fact that the actual live challenges that existed at the time of the application have since become moot means that there is no basis to allow an appeal to proceed. As I have said to Mr MacDonald, it is far preferable that these issues be debated in the Family Court so that he and his former wife can resolve their relationship property disputes as soon as practicable.
[16] In those circumstances, I refuse an extension of time to appeal. That means that the other issues that would have been before me for decision today, will not require determination.
Result
[17] The application for an extension of time to appeal is dismissed. The application to adduce further evidence on appeal is spent and is also dismissed.
[18] Costs are awarded in favour of Ms MacDonald on this application. The Registrar shall fix costs on a 2B basis and reasonable disbursements. Both are to be paid by Mr MacDonald to Ms MacDonald. I indicate that, even if Mr MacDonald’s application had been successful, a similar order for costs would have been made on
the basis that he was seeking an indulgence from the Court.11
P R Heath J
11 See, for example, Commissioner of Inland Revenue v Dick (2000) 14 PRNZ 378 (HC).
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