Nation v Nation - [2005] NZSC 14

IN THE SUPREME COURT OF NEW ZEALAND

SC CIV 26/2004 [2005] NZSC 14

BETWEEN HENRY JOHN ESDAILE NATION Appellant

ANDNICOLA MARY NATION Respondent

Court: Gault J and Keith J

Counsel: M J Macfarlane for Appellant
G R J Thornton for Respondent

Hearing: 5 April 2005

Judgment: 5 April 2005

Reasons: 8 April 2005

JUDGMENT OF THE COURT

As announced at the hearing,

A The Court rules that it has jurisdiction over this proposed appeal.

BLeave is granted to appeal on the issue whether the Court of Appeal correctly interpreted and applied s 44 C of the Property (Relationships) Act 1976 to the disposition to the trust of the relationship property half interest in the farm at Punawaitai in the circumstances of this case.

CThe appellant is entitled to costs of $5,000 plus reasonable disbursements including the cost of travel and accommodation (if any) to be fixed by the Registrar in the absence of agreement.

HENRY JOHN ESDAILE NATION V NICOLA MARY NATION SC SC CIV 26/2004 []

REASONS

[1] This application for leave to appeal relates to a proceeding under the Property (Relationships) Act 1976 which began in a Family Court with appeals being decided in the High Court and the Court of Appeal.

[2] The first question to be answered in dealing with the application for leave is whether the decision of the Court of Appeal is final with the consequence that this Court does not have jurisdiction. Section 7 of the Supreme Court Act 2003 gives the Court jurisdiction to hear and determine an appeal by a party against any decision of the Court of Appeal made in a civil proceeding, which this is, unless, to quote the relevant exception, an enactment “makes provision to the effect that there is no right of appeal against the decision”.

[3] Mr Thornton, for the respondent, contended that s 67 of the Judicature Act

1908 is such an enactment. It provides:

67 No appeal on appeals from inferior Courts without leave

The determination of the High Court on appeals from inferior Courts shall be final unless leave to appeal from the same to the Court of Appeal is given by the High Court or, where such leave is refused by that Court, then by the Court of Appeal.

[4] He called in aid the decision of the Privy Council in De Morgan v Director- General of Social Welfare1 holding that s 67 prevented it granting special leave to appeal from a judgment of the Court of Appeal in proceedings which had begun in a District Court. Lord Browne-Wilkinson said this:

Under s 67 the decision of the High Court is “final”. To this finality there is one limited exception ie an appeal with leave to the Court of Appeal. There is no further exception to the finality of the decision of the High Court which permits a further appeal to the Privy Council. If the Court of Appeal dismisses the appeal from the High Court, the decision of the High…

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 Nation v Nation

Details

AGLC: Nation v Nation [2005] NZSC 14
Case: [2005] NZSC 14
Decision Date: 8 April 2005

CaseChat Overview and Summary

The case before the Supreme Court of New Zealand involves Henry John Esdaile Nation, who has appealed against the decision of the Court of Appeal in relation to a matter under the Property (Relationships) Act 1976. The primary legal issue before the court was whether the Court of Appeal correctly interpreted and applied section 44C of the Property (Relationships) Act 1976 concerning the disposition of the relationship property half-interest in a farm at Punawaitai to a trust. The court also needed to decide whether it had jurisdiction over the appeal, considering the provisions of the Supreme Court Act 2003 and the Judicature Act 1908.

The court found that it had jurisdiction to hear the appeal, despite arguments that the finality provisions of the Judicature Act 1908 should prevent further appeals to the Supreme Court. The court reasoned that the purpose of the Supreme Court Act 2003, which was to establish a new court of final appeal and improve access to justice, was not fully achieved by the finality provisions in the Judicature Act. The court further determined that the specific purpose of providing for appeals in relationship property cases, as indicated by the amendments to the Property (Relationships) Act 1976, meant that the finality provisions of the Judicature Act were superseded. Leave to appeal was granted on the issue of section 44C of the Property (Relationships) Act 1976 but refused on the issue of classifying cattle provided to a joint-venture under a "put to use" arrangement as relationship property.

The court granted the appellant costs of $5,000, plus reasonable disbursements including travel and accommodation expenses to be fixed by the Registrar.

Orders