Moir v Moir - [2007] NZCA 379

IN THE COURT OF APPEAL OF NEW ZEALAND
CA245/07
[2007] NZCA 379
BETWEENANNABEL LOUISE MOIR

Applicant

ANDROSS SPENCER MOIR

Respondent

Hearing:20 August 2007

Court:Hammond, Robertson and Ellen France JJ
Counsel:I M Mitchell for Applicant

M W Vickerman for Respondent

Judgment:30 August 2007 at 12 noon

JUDGMENT OF THE COURT

A        The application for special leave to appeal is dismissed.
B        No order for costs in this Court. Costs will lie where they fall.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]       Mr and Mrs Moir have, for some time, been involved in protracted litigation under the Property (Relationships) Act 1976 (the Act), involving substantial assets.
[2]       An appeal was made to the High Court in respect of three judgments delivered by Judge Somerville in the Family Court at Christchurch.
[3]       Chisholm J delivered one judgment on those appeals, on 20 December 2006 (HC CHCH CIV 2003-409-2621, 2004-409-2653, 2006-409-964).
[4]       The applicant was dissatisfied with certain aspects of that judgment. She applied for leave to appeal to this Court on two questions of law:
1.Does the payment of the purchase price of each of the Great North Road, Auckland and Manchester Street, Christchurch properties from the proceeds of a loan secured over the family home at Helmores Lane, Christchurch mean that those properties and the rents derived therefrom must be classified as relationship property?
2.Was it open to the High Court to apportion the bank account of Ross Spencer Moir in the way it did and to determine that only part of the account was relationship property, or was the whole account relationship property? If the whole of the account was relationship property and the High Court’s apportionment was wrong, what was the correct apportionment?

[5]       By a judgment delivered on 1 March 2007, Chisholm J granted leave to appeal to this Court on those two questions.
[6]       Under the rules of this Court, the applicant had 20 working days from the date when the High Court granted leave to appeal to file her appeal (r 29(b)(ii) of the Court of Appeal (Civil) Rules 2005). That period expired on 29 March 2007.
[7]       The applicant’s solicitor did not file the appeal timeously. This was because the respondent had indicated that there would be a cross-appeal, and had, on 12 March 2007, filed a formal application in the High Court at Christchurch seeking orders:
a.Extending the time within which R S Moir can apply for leave to cross appeal to the Court of Appeal;
b.Granting R S Moir leave to cross appeal against the decision of this Court delivered on 20 December 2006 in respect of its finding at paragraph [186] that had it reached the conclusion that the properties at Manchester Street and Great North Road and the rentals therefrom were relationship property it would have not been prepared to disagree that section 13 of the Property (Relationships) Act 1976 applied but it would have altered the allocation of relationship property from 75:25 as determined by the Family Court…

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 Moir v Moir

Details

AGLC: Moir v Moir [2007] NZCA 379
Case: [2007] NZCA 379
Decision Date: 30 August 2007

CaseChat Overview and Summary

In Moir v Moir, the Court of Appeal of New Zealand considered an application for special leave to appeal by Annabel Louise Moir against the decision of the High Court. The case involved protracted litigation between Mr and Mrs Moir under the Property (Relationships) Act 1976, focusing on the classification and division of assets, including commercial properties and bank accounts. Annabel Moir sought leave to appeal on two questions of law concerning the classification of certain properties as relationship property and the apportionment of funds in a joint bank account. The application was filed out of time, and Annabel Moir sought special leave due to the respondent's indication of a potential cross-appeal. The Court of Appeal examined whether the questions raised were suitable for appeal, considering them to be mixed questions of fact and law rather than pure questions of law. The Court concluded that the questions did not meet the threshold for a second appeal on points of law only and dismissed the application for special leave. No order for costs was made in the Court of Appeal, with costs to lie where they fall.

Orders