Natalie Sharon Tabb; /; And; Brendan Mark Forshaw; ; Brendan Mark Forshaw and DHT; (2013) 5 Limited as trustees of the Ann Forshaw Memorial Trust; s

[2024] NZHC 2769

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-602

[2024] NZHC 2769

UNDER

Property (Relationships) Act 1976

IN THE MATTER

of an appeal against a decision of the North Shore Family Court dated 22 February 2024 in FAM 2015-090-405

BETWEEN

NATALIE SHARON TABB

Appellant/Applicant

AND

BRENDAN MARK FORSHAW

First Respondent

BRENDAN MARK FORSHAW and DHT

(2013) 5 LIMITED as trustees of the Ann Forshaw Memorial Trust

Second Respondents

Hearing:

19 September 2024

Appearances:

C McLean, C Cartwright and S Maxwell for Appellant

V A Crawshaw KC and S M Wilson for First Respondent L Kearns KC for Second Respondents

Judgment:

25 September 2024

JUDGMENT OF BLANCHARD J

This judgment was delivered by me on Wednesday, 25 September 2024 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

Solicitors:           McLean Law Ltd, Auckland

Haigh Lyon, Auckland Shieff Angland, Auckland

Copy to:V A Crawshaw KC S M Wilson

L J Kearns KC

TABB v FORSHAW [2024] NZHC 2769 [25 September 2024]

[1]                  Ms Tabb has appealed a decision of Judge M L Rogers dated 5 March 2024 in the Family Court at North Shore.1

[2]                 The decision relates to a relationship property dispute between Ms Tabb and her ex-husband, Mr Forshaw, and the Ann Forshaw Memorial Trust (the Trust), a trust established during their marriage. The Trust was named after Mr Forshaw’s mother and settled by his father, George Forshaw. Mr Forshaw is a trustee and discretionary beneficiary of the Trust.

[3]                 Ms Tabb was not represented at trial by her present lawyers. However, she had legal representation. The trial occupied seven days and resulted in a lengthy reserved judgment.

[4]The appeal is due to be heard in this Court on 29 October 2024.

The present applications

[5]                 On 9 August 2024, Ms Tabb filed an interlocutory application for discovery against non-parties or, alternatively, against Mr Forshaw and the Trust. The application also sought leave to adduce further evidence and an adjournment of the 29 October 2024 fixture. It is these applications that I must now determine.

[6]                 The non-parties against which discovery is sought are ASB Bank Ltd and Westpac  Banking  Corp  Ltd.  The  documents  sought  are  bank  statements  of   Mr Forshaw and the Trust and various other parties. In the alternative, discovery of Mr Forshaw’s and the Trust’s bank statements are sought directly from them.

[7]                 The further evidence that Ms Tabb seeks leave to adduce in the appeal is the bank statements in relation to which discovery is sought. The application to adduce further evidence is therefore only necessary if the discovery application is successful.

1      Tabb v Forshaw [2023] NZFC 11143.

[8]                 The reason an adjournment of the 29 October 2024 fixture is sought is that it is anticipated that there would be insufficient time to obtain, review and examine the further discovery and adduce the further evidence prior to the fixture. The application for adjournment is therefore only necessary if both the application for discovery and the application for leave to adduce further evidence are successful.

The discovery application

Discovery in appeals

[9]                 The application for non-party discovery was made under  r  8.21  of  the  High Court Rules 2016 and the application for discovery against Mr Forshaw and the Trust was made under r 8.19. However, these are the rules that apply to discovery applications in proceedings commenced in the High Court. It is highly doubtful whether they apply to appeals, which are governed by pt 20 of the Rules.2

[10]              There is no rule in pt 20 that enables the Court to make discovery orders on appeal. However, I accept that such a power exists. It is likely that the power to order discovery on appeal derives from r 1.6, which applies if a case arises in which there is no form of procedure prescribed by the Rules or elsewhere. In that case, the Court is empowered to dispose of the matter in such a manner as it thinks best calculated to promote the interests of justice.3

[11]              What is not in doubt is that it is rare for discovery to be allowed on appeal. This is because, as the Court of Appeal said in Comalco New Zealand Ltd v Broadcasting Standards Authority, “[s]o far as appeals are concerned, the proper time for discovery is while the case is before the lower Court.”4

2      Brand v Registrar of Companies [2016] NZHC 2983; Air New Zealand Ltd v Commerce Commission HC Auckland CIV-2003-404-6590, 6 May 2004; and Comalco New Zealand Ltd v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA).

3      Air New Zealand Ltd v Commerce Commission, above n 2, at [36] and [37].

4      Comalco New Zealand Ltd v Broadcasting Standards Authority, above n 2, at 160.

[12]              It has been said that the Court will only order discovery on appeal in “exceptional circumstances”.5 The applicant must demonstrate a “compelling reason

… for avoiding the principle that discovery is not available on appeals”.6

[13]              Counsel only referred to two cases in which discovery was allowed on appeal. In the first, Norris v Registrar of Companies,7 the orders were made by consent.

[14]              The second case was Air New Zealand Ltd v Commerce Commission.8 In that case, Rodney Hansen J ordered discovery in the context of an appeal from a determination of the Commerce Commission. The context was that the Judge had already held that the Commerce Commission could adduce further updating evidence. That evidence was admitted under the equivalent of r 20.16. The updating evidence was extensive and was likely to be given more emphasis than is normally the case.  A preliminary review of the evidence suggested that relevant documents may not have been disclosed. The appellants had a strong incentive to voluntarily disclose favourable updating material, but not to disclose less favourable material. In these unusual circumstances, complete non-selective disclosure was necessary to ensure that the Court had the full picture.9

Ms Tabb’s application for discovery

[15]              Mr McLean argued that discovery should be available in the present case for the following reasons. First, the documentation sought is relevant to the matters on appeal. Second, Mr Forshaw and the Trust failed to meet their discovery obligations in the Family Court. Third, the Court should be more prepared to allow discovery in appeals under the Property (Relationships) Act 1976.

[16]              In my view, it is clearly inappropriate for discovery to be ordered.  Even if  Mr McLean is correct that the documentation is relevant, that is not sufficient. If it were, then applications for discovery on appeal would be much more common. As I have said, they are rare. Something significantly more than mere relevance is required.

5      Brand v Registrar of Companies, above n 2, at [28].

6 At [24].

7      Norris v Registrar of Companies [2012] NZHC 2193,

8      Air New Zealand Ltd v Commerce Commission, above n 2.

9      At [33]–[34].

[17]              Further, if the discovery by Mr Forshaw and the Trust was inadequate, that should have been dealt with by a discovery application in the Family Court. If the application was unsuccessful, the Family Court’s decision could have been appealed. If there was failure to comply with the discovery order, a further application could have been made to require compliance.

[18]              Discovery applications were in fact made by the appellant in the Family Court in 2015, 2016 and 2018. Those applications were determined by Judge A M Manuel in decisions of 24 January 2019,10 17 April 2019,11 and 30 September 2020.12 None of the decisions were appealed, and no application was made alleging that there had been a failure to comply with the discovery orders that had been made. The last of the decisions was issued around two-and-a-half years before the substantive trial commenced on 13 March 2023.

[19]              I also disagree that a different approach is required under the Property (Relationships) Act. There is nothing specific in the provision in the Act dealing with appeals to the High Court that suggests that such appeals should be dealt with differently to any other kind of appeal.13

The applications to adduce further evidence and for adjournment

[20]              As I have concluded that I should not make discovery orders, it is unnecessary for me to discuss these applications.

Result

[21]The applications are dismissed.

[22]If the parties cannot agree on costs, then I direct that:

(a)Mr Forshaw and the Trust should file and serve memoranda of no more than two pages within 10 working days; and

10     Tabb v Forshaw FC North Shore FAM-2015-090-405, 24 January 2019.

11     Tabb v Forshaw FC Auckland FAM-2015-090-405, 17 April 2019.

12     Tabb v Forshaw [2020] NZFC 8338.

13     Property (Relationships) Act 1976, s 39.

(b)Ms Tabb should file and serve a memorandum of no more than two pages within a further 10 working days.

[23]I will then determine costs on the papers.

Blanchard J