Rabson v Gallagher - [2012] NZCA 237

IN THE COURT OF APPEAL OF NEW ZEALAND

CA507/2010
CA726/2010
[2012] NZCA 237

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

AND LINDA GALLAGHER
First Respondent

AND MALCOLM EDWARD RABSON
Second Respondent

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

CA524/2010

AND BETWEEN LINDA GALLAGHER
Appellant

AND MALCOLM EDWARD RABSON
First Respondent

AND MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMLY TRUST
Second Respondent

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

CA725/2010

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

AND LINDA GALLAGHER
First Respondent

AND MALCOLM EDWARD RABSON
Second Respondent

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

Court: O'Regan P, Glazebrook and Ellen France JJ

Counsel: M E Rabson in person
N Levy and C A J Fewkes for Ms Gallagher
B Balderstone for the Trustee of the Gallagher-Rabson Family Trust

Judgment: 15 September 2011

Judgment: 20 December 2011

Recall Judgment: 11 June 2012 at 3 pm

JUDGMENT OF THE COURT

The application for recall is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

Mr Rabson has applied for the recall of this Court’s judgment dealing with relationship property and associated issues that have arisen between him, and his former partner, Ms Gallagher.[1]

Process

[1]Rabson v Gallagher [2011] NZCA 459 [2011] NZFLR 1040. We will call this the September judgment. In a subsequent judgment, the Court made orders consequential on the findings in the first judgment: Rabson v Gallagher [2011] NZCA 669. We will call this the December judgment. The present application relates to the first judgment only, though Mr Rabson’s complaints relate to both. We will treat it as an application to recall both judgments.

The Court has recently set out the process to be followed where an application for recall has been made.[2] In Erwood v Maxted, the Court indicated that it would deal with such applications without a hearing and would give only brief reasons. It made it clear that the other party was not required to respond to the application unless asked to do so. We are satisfied in the present case that the application can be dealt with on the basis of the material submitted by Mr Rabson and that it is not necessary to seek submissions from Ms Gallagher.

Perfected judgment

[2] Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 AT [23].

Normally a judgment is amenable to being recalled only if it has not been perfected. In the present case both the September judgment and the December judgment have been perfected, because they have been sealed in accordance with r 51 of the Court of Appeal (Civil) Rules 2005. So neither can be recalled.[3] That is sufficient to dispose of the application but for Mr Rabson’s benefit we will outline why we would not have recalled the judgments even if that impediment had…

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 [2012] NZCA 237
Case: [2012] NZCA 237
Decision Date: 11 June 2012

CaseChat Overview and Summary

In the case of Rabson v Gallagher, Malcolm Edward Rabson, as trustee of the Malcolm Rabson Family Trust, sought the recall of the Court of Appeal’s judgment in a dispute over relationship property with Linda Gallagher. The dispute involved the division of property and claims regarding renovation costs and a vehicle. The case was heard by O'Regan P, Glazebrook, and Ellen France JJ. The legal issues before the Court were whether the Court of Appeal had erred in its handling of the renovation costs claim and the appropriateness of the costs awarded. The Court of Appeal considered whether the appeal against the judgment could be recalled based on the strict criteria set for such applications, including changes in relevant law, overlooked legislative provisions or decisions, or exceptional circumstances requiring justice.

The Court of Appeal determined that the judgments had been perfected, meaning they could not be recalled under ordinary circumstances. The Court further explained that the recall of judgments is rare and should only be considered in exceptional cases, such as when there has been a significant change in the law, an important legal authority has been overlooked, or exceptional circumstances justify reopening the judgment. The Court held that neither of these conditions applied to the present case. Regarding the renovation costs, the Court found that Mr. Rabson had not substantiated his claim, as he had failed to present sufficient evidence at the High Court hearing. The Court also clarified that the costs awarded were appropriate, as Ms. Gallagher was the successful party in the appeal. Consequently, the application for recall was dismissed.

Orders