P B v B J B
[2016] NZHC 2710
•11 November 2016
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2016-404-1892
[2016] NZHC 2710
BETWEEN P B
Appellant
AND
B J B
Respondent
Hearing: On the papers Counsel:
Appellant in person
D Chambers QC for respondent
Judgment:
11 November 2016
JUDGMENT OF KATZ J
[Stay application]
This judgment was delivered by me on 11 November 2016 at 3:30pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Peter McCutcheon, Auckland
Counsel: D Chambers QC, Bankside Chambers, Auckland Copy to: P B (Appellant)
B v B [2016] NZHC 2710 [11 November 2016]
Introduction
[1] The appellant, Mr B, seeks a stay of an order under appeal requiring him to pay maintenance to the respondent, Mrs B, pending final resolution of relationship property issues between the parties. Woodhouse J granted an interim stay on 12 October 2016, pending formal determination of Mr B’s application.
[2]On 23 May 2014, Judge Maureen Southwick QC ordered Mr B to pay
$1,797.00 per week in maintenance to Mrs B for her reasonable needs and $5,000 a month for her legal expenses, until the last Friday of May 2016.1 The intention of the order was for it to cease on “the expiration of a reasonably assessed timeframe to complete relationship property issues”. Either party could therefore apply to vary or discharge the order should relationship property issues be resolved prior to that date or if circumstances substantially altered in some other way.
[3] Clearly, the expectation was that relationship property issues would be resolved prior to May 2016. Unfortunately, this has not been the case. The substantive relationship property hearing, set down for 30 November 2015 to 4 December 2015, was adjourned until September 2016 as a result of Mr B’s ill health.2 On 17 May 2016, Mrs B applied without notice for an order extending the final maintenance order until the Court’s decision in the substantive proceedings. On 29 June 2016, Judge Southwick placed the application on notice and directed that Mr B be served. He filed a notice of defence and an application for adjournment (again due to health issues) on 13 July 2016. Mrs B, on 20 July 2016, filed a memorandum seeking an urgent fixture in regard to interim distribution and maintenance.
[4] Judge I A McHardy held a telephone conference on 2 August 2016 to address the unavailability of Judge Southwick for the September fixture, and the issues raised by Mrs B. Mr B applied unsuccessfully for an adjournment of the telephone conference on the basis of ill health. He did not attend. On 4 August 2016, the Judge released a Minute which, amongst other things, extended the maintenance order until the Court delivered its substantive relationship property decision.3 The original order
1 BJB v PB [2014] NZFC 3293.
2 PB v BJB FC Auckland FAM-2011-004-002022/24, 26 November 2015 (minute).
3 BJB v PB FC Auckland FAM-2011-004-002022, 4 August 2016 (minute).
anticipated that maintenance would continue until resolution of relationship property, and there had been no change in Mrs B’s circumstances. The September fixture was also vacated. The substantive fixture is now set down for 7 February 2017. Mr B appealed to this Court against Judge McHardy’s orders. His appeal is set down for 28 February 2017.
Should a stay be granted?
[5] Rule 20.10 of the High Court Rules allows the High Court to grant a stay where a decision is under appeal:
20.10 Stay of proceedings
(1)An appeal does not operate as a stay—
(a)of the proceedings appealed against; or
(b)of enforcement of any judgment or order appealed against.
(2)Despite subclause (1), the decision-maker or the court may, on application, do any 1 or more of the following pending determination of an appeal:
(a)order a stay of proceedings in relation to the decision appealed against:
(b)order a stay of enforcement of any judgment or order appealed against:
(c)grant any interim relief.
(3)An order made or relief granted under subclause (2) may—
(a)relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:
(b)be subject to any conditions for the giving of security the decision-maker or the court thinks just.
[6] The general rule is that a party is entitled to enjoy the fruits of a judgment in its favour, even when an appeal has been filed. However, the Court has a discretion to grant a stay where there is a need to preserve the position in case the appeal is successful.4 In exercising its discretion, the Court will engage in a balancing exercise,
4 Philip Morris (New Zealand) Ltd v Liggett & Myers Tobacco Co (New Zealand) Ltd [1977] 2 NZLR 41 (CA); Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA).
weighing up the position of both parties.5 I accept Ms Chambers QC’s submission that, in this case, the relevant factors are:
(a)Whether the appeal may be rendered nugatory by the lack of a stay;
(b)The bona fides of the applicant as to the prosecution of the appeal;
(c)Whether the successful party will be injuriously affected by the stay;
(d)The strength of the appeal; and
(e)The overall balance of convenience.
[7] The appeal will not be rendered nugatory by a lack of stay. Even if the appeal is successful, repayment of maintenance paid until the appeal is decided can be accounted for in the subsequent division of relationship property.6
[8] I have no doubt about Mr B’s bona fides as to the prosecution of the appeal. He has challenged and appealed a number of decisions made in these proceedings to date. However, Mr B’s motives for appealing are a cause for concern.7 Judge Southwick was critical of Mr B’s conduct during the proceeding, involving threats to Mrs B, the experts involved and counsel. Judge Southwick noted that Mr B’s “behaviour has generally been contemptuous and mocking of the Court’s processes and powers”.8 Mr B was also found in contempt of Court for failing to comply with an order requiring the costs of valuations and fees for a lawyer engaged to assist the Court to be paid out of a bank account under his control.9 He unsuccessfully appealed that decision.10 The present stay application must necessarily be viewed in the context of Mr B’s overall intransigence in these proceedings as a whole. 11
5 Duncan v Osborne Building Ltd, above n 4; Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC).
6 Wylie J made the same point in the application for a stay pending the appeal against Judge Southwick’s original maintenance decision: PB v BJB [2014] NZHC 1329 at [47].
7 BJB v PB , above n 1, at [7]-[9] and [110].
8 At [8]; PB v BJB [2014] NZHC 3165 at [8]-[11].
9 BJB v PB [2014] NZFC 156.
10 PB v BJB, above n 8.
11 PB v BJB, above n 6, at [51].
[9] I accept Ms Chamber’s submission that Mrs B will be affected by a stay order. Judge Southwick’s decision was carefully reasoned after a fully defended hearing. The Judge found that Mrs B could not meet her reasonable needs as a result of the division of functions during the marriage, her potential earning capacity, and her ongoing responsibilities to one of their daughters. The Judge also found that Mr B was in the position to meet spousal maintenance from his separate property and that it was just for him to do so.12 The clear intention of the order was for it to operate until relationship property issues were resolved.13 Indeed, it was accepted by the Judge and Mr B that it would only be once relationship property issues are resolved that “both parties’ positions will have clearly crystallised, so empowering each to order their lives financially”.14 Moore J rejected an appeal against the maintenance decision, again in a carefully reasoned decision.15
[10] There is nothing to indicate that Mrs B’s financial circumstances have changed to any material extent. Likewise, there is nothing to indicate that Mr B does not have the ability to pay maintenance. I accept that Mrs B places considerable reliance on the maintenance payments to meet her day-to-day, and legal, needs. The very purpose of the order, to provide necessary funds for Mrs B pending the resolution of all relationship property issues, would be defeated if a stay is granted.16
[11] I accept Ms Chamber’s submission that the appeal, at least in respect of maintenance, does not appear to have any apparent merit.17 Even if that preliminary view is incorrect, and the appeal has merit, it is my view that the combination of the above factors means that a stay is inappropriate. The clear intention of the Family Court order was for maintenance to be payable until resolution of relationship property issues, even if it was not anticipated that it would take this long. Further, the proceedings have been delayed at least partly as a result of Mr B’s ill health, and not as a result of Mrs B’s conduct.
12 BJB v PB, above n 1, at [111]-[112].
13 At [109] and [113].
14 At [109].
15 PB v BJB, above n 8.
16 Herbert v Herbert HC Napier CIV-2011-441-618, 19 October 2011.
17 See New Zealand Insulators Ltd v ABB Ltd (2006) 18 PRNZ 459 (CA) at [13]; Redhill Development (NZ) Ltd v Green HC Auckland CIV-2009-404-405417. 22 October 2009 at [8]-[16].
[12] Judge McHardy extended the maintenance period in accordance with the purpose of the order. Mr B submits that the Judge ignored his settlement offer to the applicant. His offer was for maintenance to be replaced by monthly interim distributions deducted from her share of the relationship property. Mrs B was plainly entitled to reject this offer, and was entitled to the maintenance order given by Judge Southwick. It has no relevance to whether the order should have been extended.
[13] The overall balance of convenience clearly favours Mrs B. The appeal will not be rendered nugatory by the absence of a stay, and the effects on Mrs B of granting a stay would be significant. It is not in the interests of justice for a stay to be granted.
Result
[14]The application for a stay is declined and the interim stay is vacated.
[15] In addition to ongoing maintenance, Mr B is to pay Mrs B any maintenance sums that fell due for payment between 14 October 2015 and the date of this judgment.
[16]Costs are reserved, to be determined following final resolution of the appeal.
Katz J
2
1