Meads v Muldrew
[2021] NZHC 1286
•2 June 2021
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1395
[2021] NZHC 1286
IN THE MATTER of two appeals UNDER
the Property (Relationships) Act 1976
BETWEEN
SCOTT BRADLEY MEADS
Appellant
AND
KATIE SARAH MULDREW
Respondent
Continued over ...
Hearing: 28 April 2021 Appearances:
R J Collis for Appellant
C E Wiseman for Respondent
Judgment:
2 June 2021
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 2 June 2021 at 3.30 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: ...................................
MEADS v MULDREW [2021] NZHC 1286 [2 June 2021]
CIV-2021-404-426 BETWEEN
SCOTT BRADLEY MEADS
Appellant
AND
KATIE SARAH MULDREW
Respondent
Solicitors: Thomas Mounsey, Taupo
ARL Lawyers, Lower Hutt
Counsel: R J Collis, Auckland
C E Wiseman, Auckland
Copy to: Lowndes Jordan, Auckland – Attention E C Gellert
[1] The appellant, Mr Meads, has two appeals on foot, both to be heard on 23 June 2021.
[2] The first is in respect of directions or orders made by Judge Burns in the Family Court at Auckland on 5 August 2020.
[3] The second is against a judgment of Judge von Keisenberg given in the Family Court at Auckland on 19 February 2021 (“judgment”), in which the Judge determined matters between the parties under the Property (Relationships) Act 1976 (“Act”).1
[4] Mr Meads seeks leave to adduce further evidence on his appeals. The application is made pursuant to High Court Rules 2016, r 20.16(2), and is opposed.
[5] There is a degree of confusion about the evidence Mr Meads wishes to adduce. However, I propose to proceed on the basis of the written submissions of Mr Collis, who is now instructed as counsel for Mr Meads. On the face of those submissions, Mr Meads wishes to adduce affidavit evidence from Messrs Malcolm Powell, Steven Savery, Ross Jensen, Paul Nairn, David Pierce, himself, and from his mother, Mrs Carole Meads, although I do not have a copy of Mrs Meads’ proposed evidence.
Relevant principles
[6] I may only grant leave if there are “special reasons for hearing the evidence”.2 The power to grant leave is to be exercised sparingly. As a general rule, the proposed evidence must be cogent, likely to be material and, usually, fresh. Evidence is not fresh if it could, with reasonable diligence, have been produced at trial.3
[7] The application is opposed on the grounds that the proposed evidence meets none of these criteria (which it does not); moreover that, if admitted, it is likely to be the cause of delay and increased costs to Ms Muldrew; may require affidavit evidence in reply and possibly cross-examination; and that it is in the interests of justice to refuse leave.
1 Muldrew v Meads [2021] NZFC 1096.
2 High Court Rules 2016, r 20.16(3).
3 Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR20.16.02].
Background
[8] Ms Muldrew, the plaintiff in the Family Court, commenced her proceedings against Mr Meads in 2017. Ms Wiseman, who appeared before me, was Ms Muldrew’s counsel at trial. Mr Meads was not represented at trial, although he had been throughout much of the proceedings before trial.
[9] Having made detailed factual findings, the Judge awarded Ms Muldrew a half share in the equity of 19B Cathedral Place, Parnell, Auckland (“Cathedral Place”) and also ordered Mr Meads to pay Ms Muldrew sums totalling approximately $167,000 (see [180(b)] to [180(d)] of the judgment). I come back to Cathedral Place below.
Affidavit evidence
Non-compliance
[10] A preliminary and important point is that none of the affidavits comply with all of High Court Rules 2016, rr 9.76(1)(b) and (3). By these rules, an affidavit is required to state the full name, occupation, and place of residence of the deponent, and the person taking the affidavit must sign it, state the date and place the affidavit was sworn or affirmed, and the qualification the taker has which permits him or her to take an affidavit. The relevant rules provide:
9.76 Form and contents of affidavits
(1) An affidavit—
...
(b)must state the full name, occupation, and place of residence of the person making it; and
...
(3)The taker must sign the affidavit after the signature of the person making it, and must state the date and place of swearing or affirming the affidavit and the taker’s qualification ...
[11] Mr Pierce’s affidavit is compliant with r 9.76(3), but not r 9.76(1). The remainder are non-compliant with both rules.
Paul Nairn and Ross Jensen
[12] An issue at trial was whether Ms Muldrew and Mr Meads had been in a qualifying relationship under the Act, and if so when it began and ended. As I understand it, Mr Nairn and Mr Jensen’s affidavits are intended to be relevant to this issue.
[13] Mr Nairn’s (undated) affidavit is said to be relevant to a “manifest omission” at [74] of the judgment. This is concerned with whether the relationship was still on foot in February 2016.
[14] Mr Nairn states that as of January 2016 he understood the relationship between Mr Meads and Ms Muldrew was “over”. The basis Mr Nairn gives for this statement is that he overheard a conversation between Mrs Meads and Mr Meads, to the effect that Mr Meads should not let Ms Muldrew return to Cathedral Place.
[15] Mr Jensen’s affidavit is to the effect that Ms Muldrew did not support Mr Meads in 2016 when he was in a stressful situation, his employment position having been made redundant.
[16] In the section of the judgment in which she addressed this issue, the Judge referred to text exchanges and other evidence which on her view of it proved that the relationship continued into 2016. There is no prospect of these two affidavits affecting the outcome of the appeal on the issue, because their content is inconsequential. In addition, Mr Nairn’s affidavit is hearsay evidence, and inadmissible under the Evidence Act 2006.
Malcolm Powell and Steven Savery
[17] One issue in the proceedings was the propriety of a payment that Mr Meads had made to himself or for his sole benefit, but from what Ms Muldrew contended was relationship property.
[18] Mr Meads’ case at trial was that he was entitled to the payment on account of services he had rendered in respect of the couple’s purchase of two residential properties in Christchurch (“Graycliffe properties”).
[19] The Judge held that Mr Meads was not entitled to the payment, and that he was required to account to Ms Muldrew for her share of the sum paid.
[20] The gist of Mr Powell’s affidavit is that he would have expected Mr Meads to be compensated for his “due diligence” work in the context of the acquisitions. Mr Powell also offers his opinion (probably inadmissible as he does not appear to be an expert) that “It is entirely reasonable for [Mr Meads] to have expected compensation based on the market value or registered value of the completed properties”.
[21] Mr Savery’s evidence likewise concerns Mr Meads’ expertise in carrying out due diligence work in relation to such acquisitions, and his understanding that Mr Meads undertook this work.
[22] Whether Mr Meads undertook the work, and whatever his expertise or what others might consider reasonable or to be expected in the context of an arm’s length transaction, the issue on appeal will be whether the Judge erred in finding that, under the relevant provisions in the Act, Mr Meads was required to account for the funds in issue. Neither of these affidavits could have any bearing on that issue.
David Pierce
[23] At [89] of the judgment, the Judge made findings as to financial aspects of payments made from funds drawn in connection with the purchase of the Graycliffe properties. One of the Judge’s findings was that Mr Meads had:4
(b) ... transferred a total of $54,391.34 of jointly borrowed funds to his separate personal ASB bank account in two tranches on 6 May 2013 and 22 May 2013.
4 Muldrew v Meads, above n 1, at [89(b)].
[24] Mr Pierce is an accountant and, as I apprehend it, his proposed evidence is to the effect that this sum was incorrectly calculated, and that the error has been perpetuated in a calculation later in the judgment in respect of a claim by Ms Muldrew pursuant to s 20E of the Act. Section 20E permits the Court to make an order redressing the position if it finds that relationship property has been applied in the payment or satisfaction of the personal debt of one spouse or partner.
[25] Ms Wiseman submitted Mr Pierce’s evidence is unnecessary, as all the relevant documents, including bank statements, were before the trial Judge and will be available to the Judge on appeal. Thus Mr Collis will be able to make such submissions as he needs to if there is some calculation error, and this is not a matter on which the Judge hearing the appeal will require expert evidence.
[26] In the circumstances, I ask Mr Collis and Ms Wiseman to liaise within the next week or so. I doubt Ms Wiseman will object to clearing up any error in calculation if there is one. The parties may revert to the Court (very promptly) if there continues to be disagreement about the precise sum.
Mr Meads
[27] On its face, Mr Meads’ affidavit of 27 April 2021, and this is the affidavit he seeks to adduce at the hearing of the appeals, is said to be in support of this application for leave. Regardless, the vast majority of this affidavit is submission, not evidence. To the extent some paragraphs contain evidence, it is neither fresh, nor cogent, nor likely to be material. I am not persuaded there is anything in this affidavit that could not be submitted on appeal on the basis of the evidence adduced at trial.
Carole Meads
[28] As I have said, I do not have a copy of Mrs Meads’ proposed affidavit. Mr Collis advised me that Mr Meads had filed all the affidavits with the Court the afternoon before the hearing, that is the afternoon of 27 April 2021. Mrs Meads’ proposed affidavit was not filed. Accordingly, I am not able to assess it. However, any evidence from Mrs Meads would face an additional hurdle in that she did not attend the trial to give evidence, despite requests that she do so. In fact, the Judge
recorded in her judgment that Mrs Meads refused to attend Court. Given that, there would need to be some very compelling reason as to why the Court would now permit Mr Meads to adduce evidence from Mrs Meads on his appeals.
Cathedral Place
[29] There is no dispute that the registered proprietor of Cathedral Place is Turret Trust Ltd (“TTL”), in its capacity as sole trustee of the Turret Trust. Ms E Gellert, present in the Court at the hearing before me, informed me that she has now been instructed by TTL. Ms Gellert said she apprehended there might be some issue with enforcement of Judge von Keisenberg’s orders in respect of Cathedral Place, given that TTL was not a party to the proceedings in the Family Court. That may be a relevant issue at a future point but, as Ms Gellert well understood, it is not relevant to the application before me.5
Result
[30] I decline to grant Mr Meads leave to adduce the affidavit evidence to which I have referred, subject to what I have said above regarding Mr Pierce’s proposed evidence. The evidence is neither fresh nor cogent, and nor is it likely to be material. Even if it were, I would not allow its admission for the reasons Ms Wiseman advanced in opposition, as to which see [7] above.
[31] Mr Meads having failed on this application, he must pay Ms Muldrew’s costs on a 2B basis, plus disbursements. Again, if there is disagreement counsel may file brief memoranda, although I would not expect that to be necessary.
Peters J
5 As I understand it, TTL has now made a formal application to be joined to Mr Meads’ appeal.
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