P B v B J B - [2016] NZHC 2710

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,…

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 P B v B J B

Details

AGLC: P B v B J B [2016] NZHC 2710
Case: [2016] NZHC 2710
Decision Date: 11 November 2016

CaseChat Overview and Summary

In P B v B J B, the appellant, Mr. B, sought a stay of an order requiring him to pay maintenance to the respondent, Mrs. B, pending the final resolution of relationship property issues between the parties. The High Court of New Zealand, Auckland Registry, was tasked with determining whether a stay of the order should be granted pending the outcome of the appeal. The court examined several factors in making its decision, including whether the appeal might be rendered nugatory by the lack of a stay, the applicant's bona fides in prosecuting the appeal, whether the successful party would be injuriously affected by the stay, the strength of the appeal, and the overall balance of convenience.

The court found that the appeal would not be rendered nugatory by the lack of a stay, and that the overall balance of convenience clearly favored Mrs. B. The court noted that Mr. B's motives for appealing were a cause for concern, as he had previously been found in contempt of court and had made threats to Mrs. B and others involved in the proceedings. The court also found that Mrs. B would be significantly affected by the granting of a stay, as she relied on the maintenance payments to meet her day-to-day and legal needs. Therefore, the court declined the application for a stay and vacated the interim stay, ordering Mr. B to pay Mrs. B any maintenance sums that fell due for payment between 14 October 2015 and the date of the judgment. Costs were reserved to be determined following final resolution of the appeal.

Orders