Olliver v Sparks
[2022] NZHC 622
•30 March 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2020-404-1890
[2022] NZHC 622
UNDER s 182 of the Family Proceedings Act 1980 BETWEEN
GREGORY MARTIN OLLIVER
Plaintiff
AND
SARAH PATRICIA SPARKS
First Defendant
GLOVER NO 2 LIMITED (as trustee of the GLOVER NO 2 TRUST)
Second Defendant
Cont/…
Hearing: 17 March 2022 Appearances:
PJK Spring and O Mines for Mr Olliver
SP Sparks, First Defendant in CIV-2020-404-1890, in person Appearance for Glover No.2 Limited (as trustee of the Glover No.2 Trust) excused
Judgment:
30 March 2022
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 30 March 2022 at 4.30pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Keegan Alexander, Auckland Shieff Angland, Auckland
Copy to: Sarah Sparks
OLLIVER v SPARKS [2022] NZHC 622 [30 March 2022]
CIV-2020-404-1149
UNDERPart 19 of the High Court Rules an application under the Trusts Act 2019 and in equity
IN THE MATTER of the GLOVER NO.2 TRUST BETWEEN GREGORY MARTIN OLLIVER
Plaintiff
ANDGLOVER NO.2 LIMITED (as trustee of the GLOVER NO.2 TRUST)
Defendant
Introduction
[1] Mr Olliver has brought proceedings pursuant to s 182 of the Family Proceedings Act 1980 which allows the Court to vary the terms of a nuptial settlement if the parties’ marriage or civil union ends. Usually, s 182 cases relate to settlements imposed via a trust but they can involve settlements vesting property in a spouse or gifting a spouse an annuity.
[2] Here the funds being claimed by the plaintiff are funds of approximately $1.9 million owed to the Glover No.2 Trust, a trust associated with Ms Sparks, the plaintiff’s former wife. The funds are payable to the trust following a distribution from CIT Holdings Ltd (in liquidation). Mr Olliver alleges that the arrangements resulting in this distribution constitute nuptial settlements for the purposes of s 182 and that it is just and reasonable that the distribution be paid to him in its entirety.
[3] The $1.9 million distribution is currently being held in a solicitors’ trust account pending determination of Mr Olliver’s claim following orders being made by consent resolving Mr Olliver’s application for freezing orders.
[4] The ten-day substantive hearing of Mr Olliver’s claim is scheduled to commence on 18 July 2022.
[5] In my Minute dated 14 December 2021 I made interlocutory orders including orders:
(a)for additional tailored discovery requiring Mr Olliver to discover documents relating to his current financial circumstances;
(b)for the release of $1,500 from the funds held on trust to pay the legal fees of the trustee for completing discovery; and
(c)declining Mr Olliver’s application for the children to be served with certain documents in the proceeding to allow them to take legal advice and consider their position in respect of the proceedings.
[6] Discovery orders had been delayed to allow the parties to attempt to reach a settlement. Orders were made for tailored discovery of certain categories in my Minute dated 20 September 2021. An issue arose as to whether Mr Olliver was required to discover documents relating to his current financial position. Directions were therefore made for submissions to be filed in respect of the additional tailored discovery categories relating to his current financial position, as well as in respect of the trustee’s legal fees and service on the children.
[7]Orders were made on the papers in my Minute dated 14 December 2021.
[8] The time by which discovery was to be completed was truncated to ensure that discovery was completed sufficiently in advance of the date by which evidence was required to be filed for the substantive fixture. An application for leave to appeal the Minute of 14 December 2021 was filed by Mr Olliver on 1 February 2022 just prior to the date discovery was due on 4 February 2022.
[9] Mr Olliver submits that I made the following four errors (as set out in the grounds of appeal):
(a)The High Court was incorrect in holding that the current financial position of the appellant under s 182 of the Family Proceedings Act 1980 was relevant to the exercise of the Courts discretion.
(First question)
(b)Even if the current financial position of the applicant was relevant to the exercise of the Courts discretion under s 182 of the Family Proceedings Act 1980 (which is denied), discovery of the current financial position of the applicant nevertheless should not have been ordered on account of it being unreasonable and unjustly burdensome to the applicant and because of the demonstrated risk of disclosure of documents so discovered by the first defendant.
(Second question)
(c)The High Court was wrong to order release of $1500 from the funds claimed by the applicant and currently held pursuant to orders made by consent for the purpose of enabling the second defendant to complete discovery.
(Third question)
(d)The High Court was wrong not to order the children of the marriage to be served with the proceedings in circumstances where the weight of authority and their own interests as beneficiaries of the trust holding the funds mandates such service.
(Fourth question)
[10] Mr Olliver submits that the four errors alleged both individually and collectively justify leave to appeal being granted notwithstanding that this is likely to result in abandonment of the 10-day substantive fixture scheduled to commence on 18 July 2022.
[11] Ms Sparks opposes leave being granted, submitting that none of the issues are of sufficient importance to justify the delay that would arise from an appeal. In Ms Sparks’ submission the application is intended to manipulate fair process, with the seeking of leave to appeal so near to a trial timetabled to commence on 18 July 2022 bringing further burdens on the system, the Court and the unaffected parties. In her submission an appeal is not in the interests of justice.
[12] The trustee abides the decision of the Court and was excused from appearing. At the case management conference prior to the hearing of the application for leave, counsel for the trustee recorded that he would be surprised if the order made to release
$1,500 of the funds currently held on trust for payment of the trustee’s legal fees for discovery met the high threshold for leave to appeal.
Relevant legal principles
[13] An application for leave to appeal an interlocutory order is made pursuant to s 56(3) of the Senior Courts Act 2016. The relevant principles were confirmed by the Court of Appeal in Greendrake v District Court at Invercargill:1
[6] In Finewood Upholstery Ltd v Vaughan, to which Dunningham J referred in the leave decision, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were
11 Greendrake v District Court of New Zealand [2020] NZCA 122, citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679.
made. The following considerations were recognised as relevant on an application for leave to appeal:
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
(footnotes omitted)
[14] The Court of Appeal has recently reconfirmed these principles in Tomar v Tomar.2
[15] Counsel for the plaintiff relies on Li v Chief Executive of the Ministry of Business, Innovation and Employment where Palmer J held after reviewing relevant case law:3
[21] Pulling all these strands together, I consider the text, purpose, context and case law of s 56 suggests an application to appeal an interlocutory decision under s 56(3) is likely to be granted if:
(a)the appeal is not likely to be overtaken by the substantive hearing or cannot otherwise be considered as effectively in the context of an appeal of the substantive decision; or
(b)the appellant is likely to be prejudiced by a postponement to the substantive appeal; or
(c)the appeal may be dispositive of the case in law or as a practical matter; and
(d)the arguments in the appeal are capable of bona fide and serious argument; and
(e)the issue on appeal concerns a decision of sufficient significance to the parties or a question of law or general principle of sufficient importance as to outweigh the cost and delay of the appeal.
2 Tomar v Tomar [2021] NZCA 419 at [6] and [7].
3 Li v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134 at [21].
[16]Palmer J summarised the test: 4
[22] More pithily, perhaps, an application to appeal an interlocutory decision under s 56(3) is likely to be granted where: (a) there is good reason to consider it before, or separately to, the substantive appeal; and (b) it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal.
[17] Prior to the passages referred to above, Palmer J recorded that “the wider purpose behind s 56(3) is to lessen tactical delays and enhance the efficiency of the administration of justice”.5
[18] In terms of leave to appeal in respect of the orders in issue here, I do not consider the factors referred to by Palmer J are significantly different to those in Finewood as summarised in Greendrake. Given the recent confirmation in Tomar of the approach in Finewood, I consider Mr Olliver’s application for leave in accordance with the factors listed in Finewood.
High threshold
[19] The first factor listed in Finewood is the high threshold before leave to appeal is granted, with the requirement to apply for leave referred to as a “filtering mechanism”.6
[20] I return to this factor after considering the other factors to determine whether this high threshold has been met.
Is there an arguable error of law or fact?
[21] As set out in the introduction, counsel for Mr Olliver submits that I erred in four respects. I discuss each of these alleged errors below.
4 At [22].
5 At [20].
6 Finewood Upholstery Ltd v Vaughan, above n 1, at [13].
Did I err in holding that Mr Olliver’s current financial position is relevant to the exercise of the Court’s discretion under s 182 of the Family Proceedings Act 1980?
[22] In my Minute I made orders for tailored discovery by Mr Olliver of personal financial documents and in respect of 11 other entities falling within the categories set out in the schedule of additional categories attached to the Minute.
[23] Counsel for Mr Olliver submits that the primary authority relied by me was the recent decision of the Supreme Court in Preston v Preston7 and that the implications of this decision are uncertain in terms of discovery and yet to be considered in the High Court.
[24] As I recorded in my Minute, the Supreme Court decision in Preston v Preston simply confirms that the current financial position of the applicant is relevant to the exercise of the Court’s discretion under s 182.
[25] The Supreme Court clarified the process to be adopted by the courts in s 182 proceedings, dividing the second stage of the two-stage process set out in Clayton v Clayton into two so that the courts’ inquiry is now a three-stage process. This did not change the position, however, in relation to whether the current financial position of the applicant is relevant. It clearly is.
[26] The Supreme Court confirmed the purpose of s 182 as being “to empower the courts to remedy the consequences of the failure of the premise (a continuing marriage) on which the settlement was made” as set out in Clayton v Clayton and that the comparison to be made was a forward looking exercise, “comparing the position under the settlement assuming a continuing marriage against the current position under a dissolved marriage”. 8
7 Preston v Preston [2021] NZSC 154.
8 At [32]; citing Clayton v Clayton [2016] NZSC 30 [51]. (emphasis added) See also at [52] and [60].
[27]The Supreme Court in Clayton v Clayton put this diagrammatically as follows:
B
A
C
[28]In this diagram: 9
… A is the time of settlement, B is the position of the spouse under the settlement with the marriage dissolved and C would have been the position under the settlement assuming a continued marriage. The comparison is not between A and B but, rather, between B and C.
[29] In Preston v Preston the Supreme Court set out the three stage process the courts are to adopt as follows (referring to the positions in the diagram in Clayton v Clayton):10
(a)The first stage is to determine whether there is a nuptial settlement.
(b)The second stage is to assess whether there is a difference between the position of the spouse under the settlement with the marriage dissolved [position B] and what the position would have been under the settlement had the marriage continued (position C). If there is a gap between B and C, the discretion under s 182 is enlivened.
(c)The third stage is to determine how the discretion should be exercised in the particular case.
[30] The Supreme Court explained in Preston v Preston that a court does not necessarily need to undertake a lengthy or detailed arithmetical exercise unless the facts or the evidence require it “but the Court does need to have some conception of what the gap between B and C actually is before concluding, at the third stage, that other factors outweigh that gap”.11 Otherwise, the Supreme Court held the scale of the difference in position post-dissolution for the applicant will not be appreciated. The Supreme Court confirmed that considering the matter in this disciplined way
9 At [54].
10 Preston v Preston, above n 7, at [39].
11 At [62].
means there is a proper framework against which the discretion can be exercised at stage 3.
[31] Mr Spring submits for Mr Olliver that, due to the passing of time post dissolution of the marriage, Mr Olliver is in fact in position “D” which is further along the continuum from position B.12 Counsel submits that ordinarily the application will be heard by the Court within a couple of years of dissolution of the marriage but where it is being heard 10 years post-dissolution (as it is here) it ought to be the financial position of the applicant at the time of dissolution or “perhaps up to two years” hence that is relevant to discovery, not the applicant’s current financial position.
[32] Counsel for Mr Olliver further submits that the focus of the Court should be the changes in circumstances of the parties vis-à-vis the Glover No.2 Trust, whose sole asset is the CIT distribution currently held on trust. Mr Olliver submits that this is the subject matter of the proceeding against which orders are sought and that the Court will not be assisted by evidence as to whether or not one party has, “by dint of his or her own efforts well after dissolution of the marriage, acquired separate wealth on his or her own”. It is submitted that what is relevant to Mr Olliver’s claim are the contributions of Mr Olliver to the Trust in contention – the Glover No.2 Trust – not his contributions to another trust which, almost 10 years post separation “may or may not have purchased a golf course on favourable terms with opportunity for redevelopment”.
[33] Finally, counsel for Mr Olliver submits that Ms Sparks has mounted a “highly intrusive fishing expedition” seeking to ascertain the current financial position of the plaintiff and entities associated with him in circumstances where such evidence will be of little assistance to the Court in resolving the s 182 claim. It is submitted that the categories of documents set out by Ms Sparks are effectively a wish list of tailored discovery requests which would be illegitimate even on a Peruvian Guano approach.
12 The submission was that it was further along the continuum from C but I understood it as B as that is the position with the marriage dissolved.
[34] Ms Sparks submits that a year after the decision in Sparks v Olliver Trustee Company Ltd (in liq)13 where Associate Judge Paulsen accepted that there was no equity in the only two properties likely to have any value, Mr Olliver or associated entities purchased the Gulf Harbour golf course for $15 million and a residential house worth $5.7 million.
[35] The discovery sought is in relation to the entities and other parties involved in those transactions.
[36] I do not accept that I erred in finding that Mr Olliver’s current financial position is relevant to his application and therefore to discovery. The current financial position of the applicant is relevant to the exercise of the discretion. This is particularly so in this case where the nuptial settlements alleged are not just the settlement on the Glover No.2 Trust but a number of different transactions. For the Court to exercise its discretion in accordance with the purpose of s 182, as set out by the Supreme Court in Clayton v Clayton and confirmed in Preston v Preston, the Court will require information as to the current financial position of the applicant.
[37] As I noted in my Minute, Mr Olliver’s opposition to discovery is not on the basis that the entities for which documents are sought are not associated with him. The submission is instead that Mr Olliver’s current financial position is not relevant. I therefore concluded that if his current financial position is relevant, then discovery of documents in relation to each of the entities sought would be necessary. I adjusted the categories of documents sought by Ms Sparks to include only those documents relevant to Mr Olliver’s current financial position. The categories are therefore appropriately confined.
Did I err in holding that the burden of discovery and alleged risk of disclosure ought not to prevent orders being granted?
[38] Even if the current financial position of Mr Olliver is relevant, counsel for Mr Olliver submits discovery of his current financial position should not be ordered because it is unreasonable and unjustly burdensome to Mr Olliver because of the
13 Sparks v Olliver Trustee Company Ltd (in liq) [2020] NZHC 486.
complexity of his financial affairs and because of the demonstrated risk of disclosure of documents by Ms Sparks to third parties such as the New Zealand Herald.
[39] Mr Olliver submits that the issue of cost is particularly sensitive because of his unfortunate experience in the Property (Relationships) Act 1976 proceedings between himself and Ms Sparks. Ms Sparks discontinued those proceedings on 19 May 2020 but without any agreement with the defendants as to costs. The determination of costs occupied three days of hearing time with numerous memoranda filed subsequently. A judgment was delivered on 22 December 2021, but Mr Olliver’s itemised schedule of 2B costs is still to be approved as well as his claims for disbursements.
[40] In my Minute I held that the Court would not be able to undertake the s 182 process without the discovery material relating to Mr Olliver’s current financial situation and so it was required to be discovered despite the fact that it may be onerous. I accept that discovery is required to be proportionate, but Mr Olliver is the plaintiff in this claim and without discovery of the material, there will be no ability for the Court to assess, or the defendant to properly challenge, the orders sought.
[41] Mr Olliver is concerned about possible disclosure of the documents to third parties including the New Zealand Herald as he alleges that this happened previously. Ms Sparks disputes this and, as I have recorded in my Minute, has given an undertaking not to do so in respect of the discovery sought. I further recorded that Ms Sparks will be aware that any failure to abide by her obligations concerning confidentiality in relation to discovery may be the subject of further orders and that these obligations are required to be strictly observed.
[42] I do not consider that I erred in requiring discovery of the additional categories in the circumstances.
Did I err in ordering the release of $1,500 for the legal fees of the trustee for discovery?
[43] There are certain trust documents that Mr Olliver sought discovery of from the trustee, as outlined in Schedule “C” which was attached to my Minute of 14 December
2021. I concluded that these documents are required to be discovered for the assistance of all parties and the Court.
[44] As set out above, all of the assets of the Glover No.2 Trust are currently held on trust on irrevocable instructions that they are not to be disbursed pending further order of the Court as the entirety of the funds held are claimed by Mr Olliver in the proceeding and consent orders have been made in this regard.
[45] At the case management conference in September 2021 Mr Crossland provided an estimate of $1,500 plus GST for the legal fees of the trustee to complete discovery in an effort to make progress, considering that discovery by the trustee would be relatively minimal. Counsel for Mr Olliver was asked to take instructions and confirm whether Mr Olliver would agree to that amount being released from the approximately
$1.9 million currently held on trust. Mr Olliver subsequently declined to consent to the release of that sum and opposed any such order being made on the basis that he considered the trustee ought to have resigned in favour of neutral trustees.
[46] I did not accept these submissions and ordered the release of the funds because the documents discovered will be useful for all parties and for the Court and because of the modest amount sought.
[47] Counsel for Mr Olliver submits that this sets a precedent and that Ms Sparks intends to apply for much larger sums to be released to cover the trustee’s fees. Counsel for Mr Olliver again submits that Mr Olliver has a strong case for the removal of the trustee upon the grounds set out in the pleadings.
[48] As I set out in my Minute, any application for a larger amount to be released would need to be made by formal application. I do not consider therefore that my order requiring the release of $1,500 for a limited purpose does create a precedent. Nor do I consider that the strength of the case for removal assists because discovery would still be necessary with neutral trustees, who would also require payment. I do not therefore consider that I erred in ordering the release of $1,500 for the trustee’s legal fees for discovery.
Did I err in not ordering service on the children?
[49] Mr Olliver submits that I was incorrect to hold that the proceedings ought to continue without service on the children.
[50] Mr Olliver submits that contrary to my Minute which referred to the case law as being unsettled, the case law favours joining children to s 182 proceedings. Furthermore, it is submitted that I was incorrect to prioritise preservation of the fixture in July 2022 over joinder of the children in circumstances where the factors relevant to joinder as outlined in Capital Merchant Finance Ltd (in rec and in liq) v Perpetual Trust Ltd14 made a compelling case in favour of joinder of the children as interested parties or at least service on them.
[51] Counsel for Mr Olliver submits that the approach proposed in my Minute, namely that the trial Judge may make orders following the first two stages of the s 182 process if they consider the children ought to be served, will necessarily mean that there will need to be a split trial.
[52] I accept that as beneficiaries of the Glover No.2 Trust, the children’s rights may be affected if the Court exercises its discretion under s 182. As I set out in my Minute however that is the third stage of the Preston v Preston process for considering an application under s 182. After considering the first two stages, the Court may consider that the s 182 discretion is not enlivened. If that is the case, the children’s involvement in the proceeding will not be necessary.
[53] If the children are served, it is unlikely that the substantive fixture will go ahead in July 2022. It may mean that there needs to be a split trial. But if at least the first two stages can be heard, then the further hearing time necessary to consider the third stage, the exercise of the discretion, is likely to be able to be found in advance of a new 10-day substantive fixture.
14 Capital Merchant Finance Ltd (in rec and in liq) v Perpetual Trust Ltd [2014] NZHC 3205.
[54] Memoranda filed on behalf of the parties together with material filed in support made it clear that it is not in the children’s interests to be involved in the litigation unless it is absolutely necessary. This combined with the likelihood that service on the children would delay the substantive fixture led to my order that the children not be served at this stage. The possibility of a split trial is preferable to the allocated fixture being lost.
[55] I discuss the question of delay further below but I do not consider I erred in relation to this order either.
Are the alleged errors of general or public importance or of sufficient importance to the applicant to outweigh the lack of precedential value?
[56] Even if I did err, I do not consider that any of the errors are of sufficient general or public importance that they warrant determination on appeal. The orders were made in relation to the very particular circumstances of this claim, where it is 10 years post dissolution following considerable litigation between the parties and numerous alleged nuptial settlements. In such circumstances it is unlikely any decision on appeal will be of general or public importance.
[57] Whether Mr Olliver ought to discover material relevant to his current financial position may be of sufficient importance to Mr Olliver to outweigh the lack of general or public importance if there is a risk that I erred. But I consider that the law is settled in this regard and so do not place significant weight on this factor.
[58] My decision in relation to service on the children does not preclude the trial judge from ordering service following the first and second stages. There is no significant prejudice to Mr Olliver from this course (other than possible delay from a split trial) and so any risk of error would not be of sufficient importance to Mr Olliver for this to be a factor.
Do the circumstances warrant incurring further delay?
[59] Delay was a determinative factor in my decisions in relation to both service on the children and the release of funds for the trustee. Even if I did err in relation to these orders, I do not consider it would warrant the further delay of an appeal.
[60] In Lobb v Ryan15 the Court of Appeal upheld the decision of the High Court declining leave to Mr Lobb to appeal from an interlocutory decision where there was potentially an error of general or public importance but the delay of an appeal outweighed that factor. It was not a s 182 proceeding but the context was still the division of assets on the failure of a marriage, as it is in this case. Associate Judge Bell referred to the “disturbing history of litigation” between the parties in the Family Court, the High Court and the Court of Appeal,16 referring to a decision of Edwards J where her Honour said:17
the extent of the dysfunctional relationship between Mr Lobb and Ms Ryan … is evidenced by the multiplicity of proceedings between Mr Lobb and Ms Ryan. Nine separate proceedings between the couple have been listed in Mr Lobb’s affidavit.
[61] Associate Judge Bell concluded that given the history of protracted disputes and Mr Lobb’s tendency to appeal every decision that went against him, the question of whether the decision for which leave was being sought was correct was relatively unimportant when considered against the need to have the case disposed of promptly.18
[62] The Court of Appeal accepted that there was potentially an error of general importance although it considered the facts of the case were very unusual and ideally any appeal should await a case in which the issue is directly engaged. The Court of Appeal agreed however with the High Court that the more significant consideration was the delay that would result from an appeal, recording that it was five years after separation and the parties were still engaged in a number of proceedings, resolution of which was an ongoing cost to both. The Court concluded that after so long, and given
15 Lobb v Ryan [2021] NZCA 224.
16 Ryan v Lobb [2021] NZHC 496 at [15].
17 At [16], citing Lockhart Trustee Services No.56 Ltd v Ryan [2020] NZHC 1823, (2020) 5 NZTR 30-019 at [28].
18 At [17].
the history of the dispute, the interests of justice “make prompt resolution of the substantive proceeding the determinative factor”.19
[63] These last comments of the Court of Appeal are directly relevant to this case. It is now 10 years following the dissolution of the parties’ marriage in this case and there have equally been a multiplicity of proceedings. The circumstances do not warrant the further delay that would result from an appeal.
Will the interests of justice be served by granting leave?
[64] Mr Olliver originally attempted to bring this claim as a counterclaim in April 2020 in the Relationship Property proceedings first filed by Ms Sparks in 2014. Those proceedings were commenced in the Family Court, being transferred to this Court in 2015.
[65] Leave was required for Mr Olliver’s s 182 counterclaim as the close of pleadings date had passed.
[66] On 19 May 2020, however, before Mr Olliver’s leave application could be determined, Ms Sparks discontinued the relationship property proceeding. Mr Olliver therefore filed these proceedings as a new claim.
[67] Standing back and assessing in a pragmatic and realistic way whether the interests of justice lie in granting leave to appeal, I am satisfied that they do not. It is past time for the substantive hearing of Mr Olliver’s claim to take place.
Return to high threshold
[68] It will be clear from the above that I do not consider Mr Olliver’s position regarding the additional tailored discovery categories meets the high threshold necessary for leave.
19 Lobb v Ryan, above n 16, at [18].
[69] Counsel for the trustee was excused from the leave hearing but in the case management conference prior Mr Crossland submitted that he would be surprised if leave to appeal was appropriate in respect of an order to release $1,500 given the amount at stake and the high threshold for leave (as noted above).
[70] I agree. Even if I did err, the error does not meet the high threshold necessary before leave ought to be granted.
[71] Finally, in relation to service on the children, my order declining service was a pragmatic response as service would have been likely to delay the substantive hearing and it is not in the children’s interests to be involved in the litigation any more than is absolutely necessary. Again, in my view, any error would not meet the high threshold.
Result
[72] Taking all of the above factors into consideration, the application for leave to appeal is declined.
Costs
[73] Mr Olliver has not succeeded in his application and so ordinarily would be required to pay costs. However, Ms Sparks is a litigant in person and the trustee did not take an active role because it is without funds, so costs orders are unable to be made.
Directions leading up to trial
[74] I make directions below allowing three weeks for discovery and adjusting the dates for the exchange of evidence and draft chronologies as a result. The parties so far have not complied with discovery directions despite Schedule C discovery not being disputed and orders having first been made in September 2021.
[75] Counsel for Mr Olliver submits that finality as to the scope of discovery was necessary before embarking on the discovery process. I do not accept that is the case. As I set out in my December Minute, the discovery orders needed to be strictly observed.
[76] To ensure that discovery is completed sufficiently in advance of the exchange of evidence, I only allow three weeks by which the parties are required to file and serve their affidavits of documents and exchange open documents. I recognise that this is a tight timeframe and that counsel for Mr Olliver has submitted that completion of discovery will be onerous for him. Any difficulty that Mr Olliver may have in complying with that timeline will partly be because he has chosen not to comply with the discovery directions so far. All parties now need to focus on completing discovery.
[77]I direct:
(a)the date by which the parties are to file and serve affidavits of documents falling within the tailored discovery categories as set out in the two attached schedules is extended to 22 April 2022 with simultaneous electronic exchange of documents;
(b)the legal fees of $1,500 for the trustees to complete discovery are to be released to enable the trustee to comply with the above deadline;
(c)the plaintiff’s written statements of proposed evidence-in-chief, draft chronology (if necessary) and a list of documents to be included in the common bundle are to be served by 13 May 2022;
(d)the defendants’ proposed statements of evidence-in-chief, any comments and additions to the draft chronology plus lists of documents they wish to be included in the common bundle are to be served by 17 June 2022;
(e)a pre-trial conference (to address any issues arising including any directions regarding expert evidence (if any)) is to be allocated in the week commencing 20 June 2022;
(f)the remainder of the timetable directions made in my Minute of 5 July 2021 are to continue as previously directed:
(i)the plaintiff is to file its synopsis of opening submissions plus the common bundles for each proceeding and a chronology for each (or a combined chronology for both proceedings, whichever is the most appropriate) by 4 July 2022;
(ii)the defendants are to file a synopsis of their opening submissions by 11 July 2022;
(iii)as previously allocated, the 10-day substantive hearing of these proceedings is to commence on 18 July 2022 at 10am.
Associate Judge Sussock
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