McQueen v Penn - [2017] NZHC 1959

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 COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-61

[2017] NZHC 1959

UNDER the Family Proceedings Act 1980

IN THE MATTER

of an appeal under s 174(1AA)(a) Family Proceedings Act 1980

BETWEEN

ELIJAH MCQUEEN

Appellant

AND

CHERYL PENN

Respondent

Hearing: On the papers

Counsel:

S Jefferson QC, J Hawker and K Denhardt for the Appellant V Crawshaw and L Reed for the Respondent

Judgment:

17 August 2017

JUDGMENT OF WOODHOUSE J

((1) Quantum (2) Costs on appeal (3) Costs on recall application)

This judgment was delivered by me on 17 August 2017 at 11:00 a.m. pursuant to r 11.5 of the High Court Rules 2017.

Registrar/Deputy Registrar

……………………………………

Solicitors/Counsel:
Mr S Jefferson QC, Barrister, Auckland
Ms J Hawker (appellant’s instructing solicitor), Wynyard Wood, Solicitors, Auckland

MCQUEEN v PENN [2017] NZHC 1959 [17 August 2017]

Ms V A Crawshaw, Barrister, Auckland
Mr R Gubb (respondent’s instructing solicitor), Beattie Rickman Legal, Solicitors, Hamilton

Quantum

[1] In the substantive judgment on this appeal I made an order that the appellant pay maintenance to the respondent to be calculated as the difference between $382,959 and the sum of all payments already made by the appellant to the respondent for maintenance.1 If the parties were unable to agree on the amount paid by the appellant the issue was to be referred to the Court for determination.

[2] The parties were unable to agree on the amount that had been paid. The difference recorded in memoranda first filed for the parties was approximately
$18,000. The difference was steadily reduced following exchanges of affidavits and memoranda from counsel.

[3] As at 27 March 2017 the difference, on the figures as calculated by the parties was $4,962.52. The respondent contended that the balance owed to her was
$234,053.40. The appellant’s calculation was $229,090.88.

[4] A review of the detailed calculations has established that the difference between the parties, as at 27 March 2017, is only $2,995.10. The parties’ original calculations, and adjustments to them, are set out in a spreadsheet which is attached to this judgment and forms part of it.

[5] The recalculated difference of $2,995.10 relates almost entirely to one category of payment claimed by the appellant. This is the first category in the spreadsheet for payments claimed by the appellant (item (1)). He originally calculated this at a total of $9,152.74. It has been adjusted for a minor arithmetical error to $9,052.74. The corresponding calculation by the respondent was $6,321. The difference between those two figures is $2,831.74. The appellant produced bank statements and emails in support of this claim. The payments have been evidenced by documents produced by the appellant. The respondent’s lower figure is not based on a challenge to the evidence produced by the appellant but on a contention that the particular payments should not…

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 McQueen v Penn

Details

AGLC: McQueen v Penn [2017] NZHC 1959
Case: [2017] NZHC 1959
Decision Date: 17 August 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Elijah McQueen, the appellant, appealed against the decision made by the Family Court regarding the amount of maintenance to be paid to Cheryl Penn, the respondent. The substantive judgment in the appeal had already been delivered, and the court had ordered that the appellant pay maintenance to the respondent to be calculated as the difference between $382,959 and the sum of all payments already made by the appellant to the respondent for maintenance. The appellant and the respondent were unable to agree on the amount paid, and the difference between the parties was steadily reduced following exchanges of affidavits and memoranda from counsel. The recalculated difference of $2,995.10 relates almost entirely to one category of payment claimed by the appellant, which the respondent contended should not be categorised as spousal maintenance.

The legal issues the court was required to decide included the calculation of the amount owed by the appellant to the respondent as maintenance, the costs on the appeal, and the costs on the recall application. In the substantive judgment, the court had ordered that the provisional judgment sum of $382,959 was to be reduced by $152,512.20 resulting in a balance owing for maintenance as at 27 March 2017 of $230,446.80. The court assessed the difference between the parties, and it was appropriate to allow the appellant one-half of the amount in dispute; a sum of $1,415.92. The result is that, apart from a difference between the end figures for the appellant and those for the respondent of $163.26, the balance required to be paid by the appellant as at 27 March 2017 is $230,446.80.

Regarding the costs on the appeal, the court found that the respondent was entitled to costs but reduced the amount to some extent to allow for the fact that there was some success by the appellant. The court assessed an allowance to the respondent using the schedule itemised in the respondent's first memorandum, which resulted in an order that the appellant pay the respondent costs in a sum of $10,500.

Concerning the recall application, the court found that the respondent was entitled to costs in a total sum of $2,398.90, but not for the fee charged by a forensic accountant, Mr White. The court held that the appellant should not be required to pay any part of this expense in this proceeding for two reasons. The first reason is that Mr White's affidavit in this proceeding was directed to a short point and one that did not engage his expertise. The second reason for not allowing this part of the costs claim is that the respondent acknowledged that it was her misunderstanding which had led to Mr White's statement in his original report.

In conclusion, the court made an order that the provisional judgment sum of $382,959 is to be reduced by $152,512.20, resulting in a balance owing for maintenance as at 27 March 2017 of $230,446.80. The appellant is also ordered to pay the respondent costs in a sum of $10,500 and $2,398.90 on the recall application.

Orders