Northover v Hodder HC Masterton M18/01

[2002] NZHC 118

IN THE HIGH COURT OF NEW ZEALAND
MASTERTON REGISTRY M18/01

BETWEEN HIRA TUNGAANE MATERUA NORTHOVER
of Napier, Midwife
Applicant

AND JOHN LESLIE HODDER
of Featherston, Farmer
Respondent

Date of Hearing: 11 February 2002 (at Wellington)

Date of Judgment: 21 February 2002

Counsel: B M Inglis for Applicant
J M Morrison for Respondent

JUDGMENT OF DURIE J

Solicitors:
Jane Johnson & Belinda Inglis, Masterton for Applicant
Wollerman Cooke & McClure, Carterton for Respondent

[1] Hira Northover has applied to dismiss an appeal by her former partner, John Hodder, against a District Court decision dividing matrimonial property. That appeal was on the sole ground that Mr Hodder was denied the opportunity to be heard in person or to cross-examine with such prejudice that the matter should be reheard.

[2] The single ground for the current application is that the appeal was filed outside the time limit for appeals in s 39 of the Matrimonial Property Act 1976 and the period for seeking further time as allowed by s 73 of the District Courts Act 1947. The essential question is whether, in terms of s 39, the judgment had finally determined the proceedings.

[3] The background is that after a long relationship Ms Northover and Mr Hodder separated in August 1999 but in circumstances that saw Mr Hodder in possession of the bulk of the matrimonial assets which mainly comprised a farm homestead and a farmstay business. Ms Northover was subsequently dependent on a small income as a midwife. She sought a division of the matrimonial property in June 2000.

[4] In case Ms Northover should consider the matter to be important I note, from the record, that Mr Hodder took no steps to defend the proceedings until September 2000 by which time Ms Northover had been forced to seek an interim distribution to gain some financial relief. She had also to seek (and eventually obtained) an order that Mr Hodder attend for examination, which Mr Hodder did not in fact do. Matters did not really progress until Mr Hodder instructed counsel in September 2000. I mention that matter for the reason given but the only question on this application is whether or not the appeal is out of time.

[5] Judgment on the application for division of matrimonial property was delivered on 12 April. The Judge noted the expectation of Mr Hodder’s then counsel that the parties, who had been present at the hearing, were to have been available for cross-examination. He recorded that cross-examination had not been allowed and gave as his reason that a request for cross-examination had not been made beforehand. In an affidavit in opposition to the current application to strike out the appeal, Mr Daniels who appeared for Mr Hodder at the time, contends that as a result of the refusal to allow examination there was no proper consideration of Ms Northover’s assertions that she had contributed to the shearing and farmstay businesses to the claimed extent. He considered that the Court had erred in its division of those assets as a result.

[6] The judgment further purported to deal with all matters in issue between the parties. These issues related to a claim to further chattels, a farmstay business, a shearing business, a midwife practice, liability for occupational rental and a claim for interest. In addition the Court noted some areas on which the parties were agreed but that there were “other items” which “it seemed were agreed between the parties” (para [18]).

[7] The Judge reached a conclusion on each of the issues to be determined but nothing was reduced to the form of orders. The Judge simply left it for counsel to apply his finding to the facts, to incorporate the agreed matters and then to submit a final order for sealing. For example he left it to counsel to calculate what moneys had been paid on account and then to apply interest in terms of the judgment in respect of such balance as might then be found to be due. The judgment concluded with the words “I would expect counsel to be able to draft a form of order covering all matters raised here, and others agreed, but leave is reserved if they cannot”.

[8] In his supporting affidavit Mr Daniels, who is an experienced counsel in family law, set out the impact that the general and unspecific nature of the decision had had. He considered there were issues that had not been determined (instancing a car and life insurance), that some interpretation was required to convert the judgment to a final order and that some further fact finding was needed (as to payments made on account). He deposed that Ms Northover’s counsel was advised that Mr Hodder would appeal in order to re-open the determination relating to the farmstay and shearing businesses. He further deposed that he then focused upon the matters necessary to settle the final form of orders for the meantime and referred to three matters namely:

(a) the payment of the “undisputed” amount of the judgment;

(b) the methodology for calculations; and

(c) the amounts paid by Mr Hodder before and after the delivery of judgment.

In dealing with these matters he did not specifically turn his mind to the question of when time ran for the appeal. He appears to have assumed that the time for appeal could not have begun while matters to give finality to the proceedings were still being discussed.

[9] Eventually all matters were resolved (without application for further orders or directions) and counsel submitted a joint memorandum. As a result judgment was sealed on 11 July. The appeal was filed on 3 August.

[10] Section 39(1) of the Matrimonial Property Act 1976 provided at the relevant time:

“39. Appeals - (1) Where a Family Court or District Court has made or has refused to make an order in any proceedings under this Act, or has otherwise finally determined or has dismissed any proceedings under this Act, a party to the proceedings or any other person prejudicially affected may, within 28 days after the making of the order or decision or within such further time as the Court may allow in accordance with section 73(1) of the District Courts Act 1947, appeal to the High Court in accordance with the provisions of Part V of that Act (except subsections (1), (3), and (5) of section 71A) and those provisions shall apply accordingly with any necessary modifications.” (Emphasis added).

[11] Section 73(1) of the District Courts Act 1947 provides:

“73. Time for appeal; security for appeal

(1) Subject to any directions given under section 71A(6) of this Act, every appeal shall be brought within 21 days after -

(a) The date on which the final order is sealed, in the case of an appeal under subsection (1)(a) of section 71A of this Act; or

(b) The date on which leave or special leave was granted, in the case of an appeal under subsection (1)(b) or subsection (2) of that section,-

or within such further time as may be allowed by the High Court on an application made to it within one month after the expiration of that period of 21 days.” (emphasis added)

[12] Assuming that the decision released on 12 April was a final determination then, as counsel accepted, the appeal was out of time from after 10 May 2001 and the right to apply for leave to appeal had expired on 10 June 2001. However, if there was in fact no final determination until the judgment was sealed on 11 July, then the appeal was clearly in time.

[13] Mr Morrison appeared for Mr Hodder. He argued that as the judgment did not, in terms, record or refuse any order, the issue was whether the Court had “otherwise finally determined . . . [the] proceedings”. He submitted the judgment had not. It had discussed the component issues relevant to a final determination of the contest but had not taken that to the point of final orders or had not brought all matters together as a final determination of these proceedings.

[14] I admit to sympathy for an appellant who may be expected to decide whether to appeal before the full purport of a judgment is apparent. A determination that an appeal lies from a decision which merely promulgates a formula for resolving all matters, but which leaves over the application of the formula with a range of variables to be factored in, could have deleterious consequences, in future cases, if not in this. In that respect I note that as a result of an amendment in 1993, the time for appealing now runs from the date on which the order is sealed in respect of other matters that come before the District Court.

[15] No similar amendment was made for the current class of case, however, which leaves no larger prospect than that a matter might not be finally determined until the Court has resolved and recorded all details with such specificity as to make the drafting of the order no more than an exercise in legal semantics. Were that to be the case however, problems would remain in deciding when such a stage had been reached. The Court of Appeal clearly considered, in Craig v Craig [1993] 1 NZLR 29 at 33 that there could be no room for doubt and that an appeal period should be clearly ascertainable in the interests of both successful and unsuccessful litigants. Craig v Craig, on which counsel for Ms Northover relied is not without complexity and I reserved a decision to consider that case more fully. I have now done so and have come to the conclusion that it is determinative of this instant application.

[16] In that case, as in this, the Family Court judgment appeared on its face to finally decide all unresolved issues. It made findings not dissimilar from those in this case and left it to the parties to work out the effect of those findings and the adjustments necessary to take account of payments made subsequent to separation. The same situation applied here. In his affidavit Mr Daniels understood there were other outstanding issues (relating to a car and life insurances) in this case, but that was not the position that was put to the Court at the time, as is borne out by the memoranda on issues that the parties put to the Court. Then, in Craig, leave was reserved for counsel to apply further in respect to the implementation of the judgment. I think the leave given in this case amounts to the same thing.

[17] Subsequently, in Craig, the Court was referred to two further issues which were left outstanding, namely the determination of the value of a commercial property and the question as to whether or not the appellant in that case should be awarded interest on sums payable to her in terms of the judgment and then at what rate. By memorandum the Judge indicated a view on those matters. An appeal was then filed, nearly three months after delivery of the judgment and an application was made to strike out the appeal as out of time. A determination to strike out the appeal was upheld by the Court of Appeal.

[18] Factually that case is nearly on all fours with this apart only from the fact that in this case no further issues were in fact put to the Court. Having regard to the terms of the decision in Craig that difference is inconsequential.

[19] As I mentioned the decision has some complexities but its essential effect, as I read it, and for the purposes of this case, is as follows:

(a) Time runs from the promulgation of an order, be it an order made within the proceedings as upon an interlocutory order, or an order that finally disposes of an issue in the proceedings;

(b) For this purpose a determination that is not reduced to the form of a finite order, but is left dependent upon further work to be done before it can be given final shape, and which may even require further reference to the Court for implementation, is nonetheless an order.

That is not expressly stated in the decision but I think it is a necessary consequence of the conclusions that were reached.

[20] The effect of that case was not fully argued by counsel and so I take the matter no further than that which I have stated. I need only note that the distinction urged by Mr Morrison, that the conclusions reached were described in Craig as orders but were not so described in this case, can have no weight. In each case the decisions were to comparable effect and the distinction can make no difference in view of the conclusion I have reached.

[21] Accordingly while the Court of Appeal did not address the particular problem that I have considered in this case - that orders uncertain as to outcome create difficulties for prospective appellants - the effect of the decision in Craig is to leave no scope for consideration of that matter by this Court. There is no room to accede to Mr Morrison’s argument that there were no real final orders for the purposes of appeal periods until the orders were sealed.

[22] For those reasons the application is allowed and there is an order striking out the appeal.

[23] Ms Northover is entitled to costs and then, in my view, on the basis of category 2 band B. However, my attention was drawn to other proceedings. On 16 August, which was after the appeal had been filed, Ms Northover sought and obtained a bankruptcy notice against Mr Hodder for the amount outstanding in terms of the judgment as sealed (see B. 20/2001). Mr Hodder applied to set aside the bankruptcy notice and filed also in the District Court to have those proceedings stayed. I understand that a stay was ordered. The application to set aside the bankruptcy notice in this Court stands adjourned, counsel having advised that a question of costs alone remains. It appears to me that Mr Hodder would be entitled to costs on that matter on the basis of category 2 band A. I think counsel should be able to settle costs without further orders but memoranda may be submitted if required.