Poros v Bax - [2020] NZHC 2769

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-2019-419-0145

[2020] NZHC 2769

BETWEEN
SPYRIDON POROS

Appellant

AND

KYLIE BRIDGET BAX

First respondent

HELEN-GAYE BAX and WILLIAM

GRAHAM BAX as trustees of the GOLDEYE TRUST

Second respondents

Hearing: On the papers

Counsel:

J D Noble for the appellant

DAT Chambers QC for the respondents

Judgment:

22 October 2020

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 22 October 2020 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………………
Registrar/Deputy Registrar

Counsel/Solicitors:
DAT Chambers QC, Auckland Boyle Mathieson, Auckland

POROS v BAX [2020] NZHC 2769 [22 October 2020]

[1] Under s 39B of the Property Relationships Act 1976 and s 60 of the Senior Courts Act 2016, Mr Poros seeks leave to appeal against my 7 July 2020 judgment.1

[2]Such leave may be granted if the proposed appeal would raise:2

… some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the Court system and to the parties, and the delay involved in the further appeal. Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[3] For Mr Poros, Jeremy Noble argues Mr Poros’ poor financial state and impending bankruptcy on account of his liabilities to Ms Bax and the Trust give the appeal sufficient importance to justify the second appeal. He advances a comprehensive draft notice of appeal, first, to argue my judgment errs at [44] in not finding $500,000 deposited to Ms Bax’s personal bank account to be a deduction from a $2.306 million relationship debt.

[4] In connection with my finding the Family Court Judge did not err in “finding a NZD 2.306m loan to Ms Bax from the Goldeye Trust”,3 or “determining the loan (and more) was incurred for at least s 20(1)(c), (d), and (e)’s purposes or benefit”,4 I observed the sum deposited did not in any event “have effect to reduce the amount of the loan to Ms Bax, in a sum less than the balance deposited to her HSBC Geneva account”.5 That is a mathematical calculation.6 The point is more than $2.306 million was deposited into Ms Bax’s HSBC Geneva account, from which the couple drew for…

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 Poros v Bax

Details

AGLC: Poros v Bax [2020] NZHC 2769
Case: [2020] NZHC 2769
Decision Date: 22 October 2020

CaseChat Overview and Summary

The case of Poros v Bax involves an appeal by Mr Poros against the decision of the Family Court of New Zealand. The primary dispute concerns the interpretation and application of the Property (Relationships) Act 1976 and the Senior Courts Act 2016 in the context of a relationship property dispute. Mr Poros seeks leave to appeal the judgment from July 7, 2020, which was made by the High Court. The respondents, Ms Bax and the Goldeye Trust, argue against the grant of leave to appeal. The legal issues in this case revolve around the interpretation of relationship property under the Property (Relationships) Act 1976, specifically whether certain sums of money deposited into Ms Bax’s bank account constituted a deduction from the total relationship debt, and whether there were errors in the onus of proof and the setting off of debts between Ms Bax and the Goldeye Trust. The Court was required to determine whether the appeal raised a question of law or fact that was significant enough to warrant a second appeal, considering the cost and delay involved.

The Court examined Mr Poros’ arguments regarding the deposit of $500,000 into Ms Bax’s account and its effect on the calculation of the relationship debt. The Court found that the deposit did not reduce the total relationship debt as determined by the Family Court, and thus, did not constitute a material error. The Court also addressed the onus of proof for establishing relationship property, concluding that the issue was not relevant to the Court’s findings. Regarding the setting off of debts, the Court determined that such set off was of no practical effect and did not warrant reconsideration. Additionally, the Court found that there was no significant error in the Family Court’s conclusions regarding the Goldeye Trust and the treatment of relationship property. The Court concluded that the proposed appeal did not meet the threshold for a second appeal, as it did not involve unclear law or significant error.

The Court declined Mr Poros' application for leave to appeal to the Court of Appeal. The Court noted that while the matter was of private importance to Mr Poros, it did not involve significant errors of law that would justify a second appeal. The Court reserved costs for later determination, taking into account Mr Poros' status as an aided person. The Court required Ms Bax to file a memorandum within ten working days of the judgment, outlining any contended allowable steps, time allocation, and daily recovery rate, with a response to be filed within five working days thereafter.

Orders