Penn v McQueen - [2020] NZHC 408

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-175

[2020] NZHC 408

IN THE MATTER of the Property (Relationships) Act 1976 and of an appeal from a decision of the Family Court held at Hamilton

BETWEEN

CHERYL PENN

Appellant

AND

ELIJAH McQUEEN

Respondent

Hearing: On the papers

Judgment:

5 March 2020

JUDGMENT OF KATZ J

[Costs of application for leave to appeal]

This judgment was delivered by me on 5 March 2020 at 4:00pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Riverside Law, Hamilton
Wynyard Wood, Auckland Counsel: V A Crawshaw QC, Auckland
S Jefferson QC, Auckland

PENN v McQUEEN [2020] NZHC 408 [5 March 2020]

Introduction

[1] Ms Penn1 unsuccessfully appealed a Family Court decision under the Property (Relationships) Act 1976 (“PRA”) to this Court. She subsequently applied for leave to bring a further appeal, to the Court of Appeal. When her application for legal aid was declined, however, Ms Penn withdrew her leave application. Her former husband, Mr McQueen, now seeks costs in respect of the withdrawn leave application.

Background

[2] Mr McQueen and Ms Penn separated in May 2011 and their marriage was dissolved on 25 July 2013.

[3] Over the course of their marriage, Mr McQueen’s mother made a series of loans to the couple that were in large part used to renovate a family home in London, prior to the couple moving to New Zealand. The balance of the loan was used for living expenses. The Family Court found that the loan was a relationship debt.2 I upheld that decision on appeal.3

[4] The PRA provides that a New Zealand Court has jurisdiction over real property in New Zealand, and movables anywhere if one of the partners lives in New Zealand at the relevant date.4 Courts in New Zealand do not, however, have jurisdiction over foreign immovables, such as real property overseas.

[5] In this case, the parties’ former family home in London is a foreign immovable asset. Accordingly, whether Ms Penn has an interest in that property can only be determined by the English Courts. Ms Penn, however, is impecunious and (as far as I am aware) has not brought any proceedings in England. It was therefore not possible to set off Ms Penn’s relationship debt against any interest she may have in the London property or make any compensating adjustments to the division of

1      In accordance with the practice agreed between the Family Court Judges and the Chief High Court Judge in relation to appeals from the Family Court to which ss 11B-11D of the Family Court Act 1980 applies, I have used fictitious names for the parties.
2      Penn v McQueen [2019] NZFC 3585.
3      Penn v McQueen

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 Penn v McQueen

Details

AGLC: Penn v McQueen [2020] NZHC 408
Case: [2020] NZHC 408
Decision Date: 5 March 2020

CaseChat Overview and Summary

Cheryl Penn, the appellant, unsuccessfully appealed a Family Court decision under the Property (Relationships) Act 1976 to the High Court. Penn then applied for leave to bring a further appeal to the Court of Appeal. Her application for legal aid was declined, and she subsequently withdrew her leave application. Elijah McQueen, Penn's former husband, now seeks costs in respect of the withdrawn leave application. The court had to determine whether costs should lie where they fall or whether they should be awarded to McQueen.

The court examined the principles governing costs in test cases and public interest proceedings. Generally, the unsuccessful party in a proceeding pays costs to the successful party. However, costs are not awarded in test cases to encourage responsible litigation on matters of public interest. The court found that Penn's proposed appeal raised cross-border relationship property issues that have only received minimal attention from the Court of Appeal. The Law Commission has recently raised concerns regarding cross-border issues in a relationship property context and the potential injustice that can arise given the increasingly globalised nature of personal relationships. The court concluded that Penn's proposed appeal had merit and raised a matter of genuine public interest which was ripe for reconsideration by the Court of Appeal. The court found that it was in the interests of justice that costs lie where they fall, as declining to award costs to McQueen would not give rise to any injustice in the particular circumstances of this case.

The court ordered that costs lie where they fall. This decision means that Penn will not be required to pay costs to McQueen for the withdrawn leave application. The court's decision highlights the importance of encouraging responsible litigation on matters of public interest, particularly in cases where the issues raised are of genuine public interest and ripe for reconsideration by higher courts.

Orders