Rabson v Gallagher - [2016] NZCA 584

IN THE COURT OF APPEAL OF NEW ZEALAND

CA507/2010
CA726/2010
[2016] NZCA 584

BETWEEN

MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST
Appellant

AND

LINDA GALLAGHER
First Respondent

MALCOLM EDWARD RABSON
Second Respondent

WAYNE SEYMOUR CHAPMAN AS TRUSTEE OF THE GALLAGHER-RABSON FAMILY TRUST
Third Respondent

CA524/2010

BETWEEN

LINDA GALLAGHER
Appellant

AND

MALCOLM EDWARD RABSON
First Respondent

MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST
Second Respondent

WAYNE SEYMOUR CHAPMAN AS TRUSTEE OF THE GALLAGHER-RABSON FAMILY TRUST
Third Respondent

CA725/2010

BETWEEN

MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST
Appellant

AND

LINDA GALLAGHER
First Respondent

MALCOLM EDWARD RABSON
Second Respondent

WAYNE SEYMOUR CHAPMAN AS TRUSTEE OF THE GALLAGHER-RABSON FAMILY TRUST
Third Respondent

Hearing:	28 November 2016
Court:	Randerson, Asher and Brown JJ
Counsel:	No appearance for Mr Rabson N Levy for Ms Gallagher S A Barker and A M Crawford for Third Respondent
Judgment:	6 December 2016 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for clarification of the orders in Rabson v Gallagher [2011] NZCA 669 is declined.
BMr Rabson must pay costs to Ms Gallagher as for an application for leave to appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

In the High Court proceeding Ms Gallagher obtained both a half share of her and Mr Rabson’s relationship property and a finding of an institutional constructive trust in the amount of $300,000.[1] The latter order was quashed on appeal and replaced by an order under s 44C of the Property (Relationships) Act 1976 directing Mr Rabson to pay Ms Gallagher an equivalent sum.[2] Having sought and considered further submissions concerning amendments that needed to be made to the High Court orders, on 20 December 2011 this Court issued substituted orders,[3] which included the following reservation of leave:
C(d)Leave is reserved to the GRFT trustee to apply to the High Court for further directions if required and to any party to apply to this Court for clarification of any matter relating to these orders.
[1]Rabson v Gallagher HC Wellington CIV-2008-485-2279, 1 October 2010. The judgment of Wild J remains subject to an order that: “No publication of this proceeding is permitted under s 35A of the Property (Relationships) Act 1976, except with the leave of the Court that heard the proceedings, and with the exception of publications of bona fide professional or technical nature.”
[2]Rabson v Gallagher [2011] NZCA 459.
[3]Rabson v Gallagher [2011] NZCA 669.
The present application by Mr Rabson purports to invoke that leave. Mr Rabson seeks clarification in the following respects:
1.0Was it the expressed purpose of the judgment to effect an equal distribution of the relationship property between Ms Gallagher and Mr Rabson (being a 50% share for each) under s 44C of the Property (Relationships) Act 1976?
2.0Was it the direction of this Court by the judgment for its Court‑appointed trustee Wayne Chapman who was granted control of…

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 Rabson v Gallagher

Details

AGLC: Rabson v Gallagher [2016] NZCA 584
Case: [2016] NZCA 584
Decision Date: 6 December 2016

CaseChat Overview and Summary

Malcolm Edward Rabson, as trustee of the Malcolm Rabson Family Trust, appealed against a decision of the High Court which awarded Linda Gallagher half of the relationship property and an institutional constructive trust of $300,000. Gallagher cross-appealed. The Court of Appeal substituted a different institutional constructive trust order under the Property (Relationships) Act 1976 and reserved leave to any party to apply for clarification of any matter relating to the substituted orders. Rabson sought clarification of the substituted orders, arguing that Gallagher had received a disproportionate share of the relationship property. Gallagher opposed the application, arguing that the application went beyond the scope of the Court's previous orders. The Court of Appeal held that the application for clarification went beyond the scope of the Court's previous orders, which were limited to determining any issue about the meaning of the terms of the orders. The Court of Appeal declined Rabson's application for clarification. Rabson was ordered to pay Gallagher's costs as for an application for leave to appeal on a band A basis and usual disbursements.

The key legal issue in this case was whether Rabson's application for clarification went beyond the scope of the Court's previous orders, which reserved leave to any party to apply for clarification of any matter relating to the substituted orders. The Court of Appeal held that the application for clarification went beyond the scope of the Court's previous orders, which were limited to determining any issue about the meaning of the terms of the orders. The Court of Appeal held that Rabson's questions were directed to the rationale for the substantive rulings, the mode of assessment of quantum and the powers and obligations of the Gallagher Rabson Family Trust trustee, which went beyond the scope of the Court's previous orders. The Court of Appeal declined Rabson's application for clarification. Rabson was ordered to pay Gallagher's costs as for an application for leave to appeal on a band A basis and usual disbursements.

Orders