Morrison v Gray
[2025] NZHC 2190
•6 August 2025
NOTE: THIS JUDGMENT HAS BEEN ANONYMISED TO COMPLY WITH:
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
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IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2025-425-2
[2025] NZHC 2190
BETWEEN MORRISON
Appellant
AND
GRAY
Respondent
Hearing: 29 July 2025 Appearances:
M-J Thomas for Appellant
No appearance for Respondent
Judgment:
6 August 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 6 August 2025 at 10.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
MORRISON v GRAY [2025] NZHC 2190 [6 August 2025]
[1] The appellant, Ms Morrison, appeals a decision of the Family Court striking out her:
(a)application for orders under the Property (Relationships) Act 1976 (the PRA); and
(b)application for leave to apply outside the statutory time period prescribed in the PRA
for failing to comply with timetabling directions and to prosecute her proceeding. She seeks reinstatement of these applications in the Family Court.
The proceedings
[2] Ms Morrison filed proceedings in the Family Court seeking an order dividing property under the PRA on 30 April 2024. Mr Gray, Ms Morrison’s former de facto partner, is the named respondent.
[3] There is a dispute as to whether the parties separated in November 2019 or February 2020. However, there is no dispute the application was made out of time under s 24(1)(c) of PRA (which requires an application to be made no later than three years after a de facto relationship has ended). Mr Gray also claims the relationship was of short duration and he opposes the proceedings being brought out of time.
[4] On 9 September 2024 Family Court Associate Lohrey made directions requiring:
(a)Mr Gray to file a valuation for his motor vehicle within 14 days; and
(b)Ms Morrison to file updating evidence, including discovery sought by the respondent and a full response to Mr Gray’s affidavit within 21 days.
[5] Mr Gray complied with the directions on 18 September 2024. Ms Morrison did not comply with the timetabling directions.
[6] On 4 December 2024 Mr Gray filed an interlocutory application to strike out Ms Morrison’s claim on the ground it was an abuse of process, both because Ms Morrison had filed her application for a division of relationship property out of time and had failed to comply with timetabling directions.
The Family Court decision
[7] The application to strike out was called before Judge Walker on 6 December 2024. Mr French appeared on behalf of Ms Morrison as counsel on the record, Ms Adams, was unwell. Mr French advised the Court that he had seen a draft affidavit that still required some further work and editing before it could be filed. He sought an extension of 10 working days in which to do so.
[8] However, the Judge noted that Ms Morrison was required to have filed the information previously directed by 7 October 2024. A further two months had passed since that date, with those directions not having been complied with, nor any application made on behalf of the applicant to extend the timeframe set by the Family Court Associate.
[9]He concluded as follows:
[12] It is incumbent on parties to comply with directions made by the Court, but it is the applicant who brings this application. She has done so out of time and then having [brought] the application, has not complied with the Court’s timetabling directions or done anything usefully to prosecute her application, it would appear to me, in any substantive way since the initiating application was filed on 30 April 2024.
[13] Given those circumstances, the applicant’s application for orders dividing property under the Property (Relationships) Act is struck out.
The jurisdiction to strike out
[10] The jurisdiction to strike out a pleading in the Family Court is governed by r 193 of the Family Court Rules 2002. That rule provides:
(1)The court may order that all or part of an application or defence or other pleading be struck out if the pleading or part of it—
(a) discloses no reasonable basis for the application or defence or other pleading; or
(b) is likely to cause prejudice, embarrassment, or delay in the proceedings; or
(c) is otherwise an abuse of the court’s process.
(2)An order under subclause (1) may be made by the court—
(a) on its own initiative or on an interlocutory application for the purpose:
(b) at any stage of the proceedings:
(c) on any terms it thinks fit.
[11] As Ms Thomas notes, striking out on the grounds specified at r 193(1)(b) of the Family Court Rules has rarely been judicially tested, though “delay” is often mentioned in claims of abuse of judicial processes. While the Judge in making his order striking out the proceeding did not specify which grounds were relied upon, it is inferred that the failure to comply with timetabling directions was viewed as engaging either r 193(1)(b) or (c).
Evidence
[12] Ms Thomas acknowledged it was appropriate that counsel on the record file an affidavit explaining why the timetabling direction had not been complied with. That evidence was not available at hearing. I directed that any such evidence must be filed within 48 hours and an affidavit from Ms Adams was duly filed.
[13] She explains she inadvertently overlooked the deadline for filing the updating evidence due to a combination of ill health, workload and being on leave immediately prior to the deadline. She only became aware that it was already overdue when she returned from a period of leave from 7 to 9 October 2024. It was only when there was correspondence from Registry staff that she realised the respondent took issue with the delay and would oppose any extension of time for filing the further information directed. A pre-hearing conference was scheduled for 6 December 2024 where
counsel understood this would be the opportunity to make the application for an extension of time.
[14] She then focused on trying to complete the drafting of the necessary evidence in order to assure the Court that no further delay would result. Given this was only the second call of the proceedings before the Court, she anticipated that any prejudice to the respondent could be mitigated by prompt filing of the evidence and a tight timeframe granted for any extension of time.
[15] She also explains it was necessary to obtain further documentation from the IRD. Her client could not get this through the online account and so was awaiting provision of this information. In the interim, she drafted as much of the evidence she could prior to 6 December 2024 conference. Unfortunately, she then became unwell in the immediate lead up to the Court date and was on sick leave from 2 December to 9 December 2024. Mr French therefore had to step in at relatively short notice to attend the Court date on 6 December 2024.
[16] Finally, she notes that the application to strike-out was filed on 4 December 2024 and the time for filing a response to that application had not yet expired at the point the proceedings were struck out.
Submissions on appeal
[17] The primary submission made by Ms Thomas on behalf of the appellant is that her non-compliance with timetabling directions was not a sufficient reason to strike out the appellant’s proceeding. In all the circumstances, the appropriate course was for the Family Court Judge to have granted a short extension of time (as counsel sought) and, if need be, to make an “unless” order to ensure compliance.
[18] Ms Thomas points to a range of cases where the Court has reinstated proceedings, notwithstanding the application being struck out, and often after much greater delay than has occurred in the present case. For example, in DTR v DHB, the appellant’s proceeding for the division of relationship property had been struck out for
want of prosecution and failure to comply with multiple directions of the Court.1 Prior to striking out the Court had given the applicant a further opportunity to comply and warned her of the consequences of failing to do so.2 There was a delay of over two years between the order to strike out and the application for reinstatement, although it was accepted the conduct of her legal advisor had contributed to this. It was held the prejudice arising to the appellant from the striking out of the claim was substantial. The order to strike out was set aside and the substantive application reinstated.
[19] In DBH v JCK, it was considered there had not been inordinate delay justifying strike out where the respondent did not file a memorandum until nearly two years after a final adoption order was issued in which he had been given leave to apply for a parenting order for contact with the relevant child.3 The delay was influenced by the ordering of a report by the Court and the absence of timetabling directions providing for matters to come back to the Court once the report was available.
[20] In the present case, as is confirmed by the affidavit belatedly filed, it was the oversight, then the illness, of counsel that was the reason for the non-compliance.
[21] Ms Thomas also points out that neither Mr Gray’s interlocutory application for strike-out, nor the judgment striking out the proceeding identifies particular prejudice arising to the respondent as a result of the delay. However, the prejudice arising to the appellant is that she cannot pursue her claim to a division of relationship property.
Position of the respondent
[22] There was no appearance for the respondent, Mr Gray having explained at an earlier case management conference that he would not participate due to financial constraints. Mr Gray did, however, attend the hearing and was privy to my discussions with counsel for the appellant regarding the application.
1 DTR v DHB FC Alexandra, FAM-2005-002-77, 14 May 2010.
2 At [54]–[55].
3 DBH v JCK FC North Shore, FAM-2007-044-773, 29 August 2011.
Discussion
[23] This case is unusual for the relatively limited extent of non-compliance which occurred before the proceedings were struck out. The non-compliance consisted of a single failure to comply with a timetabling direction, without prior explanation or a request for an extension of time.
[24] In light of the explanation for the delay now available, it is clear there was no deliberate flouting of the Court’s timetabling orders and, from Ms Adams’ perspective, it was reasonable to assume an extension of time could be sought at the 6 December 2024 conference. The application to strike out was filed only two days before the conference and it could not reasonably have been assumed that it would be dealt with in substance at the 6 December 2024 conference. In all these circumstances, I am satisfied that the delay did not reach the threshold where the breach of the Court’s timetabling orders were so egregious as to constitute an abuse of the Court’s processes under r 193(1)(c).
[25] Similarly, while inevitably any breach of a timetabling order is likely to cause delay in the proceedings (as described in r 193(1)(b)), it is not every delay that is of sufficient substance to warrant engaging the power to strike out. As was said in Commerce Commission v Giltrap City Ltd:4
In cases of delay and alleged want of prosecution, the right of all citizens and organisations to have access to the Courts for the determination of the issues they have raised should be denied only if that important right is outweighed by a stronger right vested in the defendant to have the case dismissed because justice can no longer be done in the light of the delay.
[26] I also note that the fact the claim was brought out of time, and leave is still required to extend the time for making the application, was a factor relied on to strike the claim out. However, this ground was not considered in any meaningful way by the Judge and it does not appear to have been relied on to strike the proceedings out. Furthermore, Ms Thomas, in her submissions, points to a number of cases where
4 Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573 (CA) at 579.
extensions of time were granted for bringing such an application, ranging in time to a delay of a few months to a delay of four years and two months.5
[27] That said, as I observed to Ms Thomas when this matter was heard, it is clear that, even on a best case scenario for the appellant, there is only a modest sum of money at stake. While I am not in a position to assess the merits of the claim, it may have been that this, too, was a factor influencing the decision to strike out for non-compliance with timetabling directions.
[28] Here, I accept that there is no prejudice to the defendant if the proceedings are reinstated aside from that which is inherent in the proceedings themselves. That inherent prejudice includes the fact he has moved on in his life, taken on financial obligations and had children with his new partner there being no formal claim made against him by his former partner in respect of relationship property. However, those are all matters which can be addressed in deciding the application to bring the proceedings out of time.
[29] Accordingly, I am satisfied that in light of the explanation for the failure to comply with the timetabling direction, the relatively modest delay caused by that non-compliance and the lack of prejudice to the defendant arising from the non-compliance, the appeal should be allowed and the proceedings reinstated.
[30] However, as noted above, there are a number of hurdles to the appellant’s claim and, as accepted by Ms Thomas, there is not a lot of money at stake. Reinstatement of the proceedings will be ordered on conditions that ensure they are disposed of efficiently. The appellant cannot expect further indulgences from the Court for delays which are not properly explained.
[31] Accordingly, the appeal is allowed. The appellant’s application under the PRA, is reinstated, on the following conditions:
5 ARS v KBW [2012] NZFC 8041; Jurgens v Ruhe FC Manukau FAM-2009-092-2233, 26 April 2010; SL v AN [2012] NZFC 5810; Saunders v Wilkinson [2013] NZFC 7970; Aschenbrenner v Williams [2015] NZFC 3602; and Lee v Thompson [2016] NZFC 3048.
(a)the timetabling directions (b) and (c) made by Family Court Associate Lohrey on 4 September 2024 are complied with, in full, within 15 working days of the date of issue of this decision;
(b)the further directions at (d)–(g) of Family Court Associate Lohrey’s minute dated 9 September 2024 will then apply, albeit the timeframes are to be referenced from the date of this judgment.
Solicitors:
PR Law, Invercargill
Scholefield Law, Invercargill
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