Poros v Bax
[2020] NZHC 2769
•22 October 2020
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 support. Whatever was done with the $500,000, it is immaterial to the Judge’s finding of a $2.306 million relationship debt.
1 Poros v Bax [2020] NZHC 1602.
2 Snee v Snee (1999) 13 PRNZ 609 (CA) at [22], reinforcing Waller v Hider [1998] 1 NZLR 412 (CA) at 412 (citing Rutherfurd v Waite [1923] GLR 34; Cuff v Broadlands Finance Limited [1987] 2 NZLR 343 at 346–7).
3 Poros v Bax, above n 1, at [42].
4 At [43].
5 At [44].
6 At [41].
[5] Mr Noble argues there is no appellate guidance on who bears the onus of proof of such debt, but the point only has any materiality if the Judge had held the larger sum of net Blandford Lodge proceeds was relationship property. Only in that circumstance might Mr Noble’s claim to appellate guidance on the onus of proof on relationship property have any bearing, as Mr Noble’s own submissions acknowledge in depicting the $500,000 as a deduction from the larger $3.200 million sum. That is not what I upheld on appeal. Accepted, Mr Poros now seeks (somewhat counterintuitively, given it is at face value to increase his liability) to argue the whole disposition was a relationship loan, but that is not the purpose of a second appeal.
[6] Mr Poros seeks to re-engage on setting off debts between Ms Bax and the Goldeye Trust. Counsel essentially agreed such set off is “of no practical effect”.7 Mr Poros now isolates another prospective set off, but that is not what was addressed on appeal.
[7] Mr Poros wishes also to re-examine Ms Bax’s contended personal expenditure of a portion of a $260,000 bank advance secured over the couple’s Cambridge home. I held such examination could not survive the Judge’s finding the whole of the sum was raised for the property’s renovation and furnishing, and would not be entertained for the first time on appeal.8 He also asserts, in tracing those contended personal expenditures, $159,000 is double-counted under both $2.306 million and $260,000 loans. That relies on the bank accounts as a proxy for the couple’s relationship with the Trust. It simply was too uncertain a deduction to require to be made.
[8] Finally, Mr Poros asserts without further explanation I erred in upholding the Judge’s conclusions settlement of the Goldeye Trust was not a nuptial settlement,9 and there was no advance of relationship property in a change in the way accounts were prepared.10 A second appeal is not intended simply to allow a re-run of unsuccessful argument.
7 At [22]–[23].
8 At [55]–[56].
9 At [61]–[62].
10 At [32].
[9] While obviously privately ‘important’ to Mr Poros, leave is sought solely to disturb concurrent findings in the predecessor courts. Nothing in that relied on unclear law, such as may justify a second appeal to determine if properly construed and applied. Although Mr Poros points to criticism of his character and the stigma of pending insolvency as justifying a second appeal in the requirement of justice, that should have to rely still on some significant error of which I can identify none.
Result
[10]Leave to appeal to the Court of Appeal is declined.
Costs
[11] Noting Mr Poros’ status as an aided person,11 I reserve costs for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by Ms Bax within ten working days of the date of this judgment, with any response and reply to be filed within five working day intervals after service.
—Jagose J
11 Legal Services Act 2011, s 45.