Rabson v Gallagher - [2011] NZCA 204

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE PUBLICATIONS.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA507/2010
CA726/2010
[2011] NZCA 204

BETWEEN MALCOLM EDWARD RABSON
Appellant

AND LINDA GALLAGHER
First Respondent

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

AND LINDA GALLAGHER AND MALCOLM EDWARD RABSON AS TRUSTEES OF THE GALLAGHER-RABSON FAMILY TRUST
Third Respondents

CA524/2010
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 LINDA GALLAGHER AND MALCOLM RABSON AS TRUSTEES OF THE GALLAGHER-RABSON FAMILY TRUST
Third Respondents

Hearing: 18 May 2011

Court: O'Regan P, Glazebrook and Chambers JJ

Counsel: J H Hunter for Malcolm Rabson in his personal capacity and as the trustee of the Malcolm Rabson Family Trust
N Levy and C A J Fewkes for Linda Gallagher in her personal capacity

Judgment: 19 May 2011 at 4 pm

JUDGMENT OF THE COURT

AAn extension of time for filing a single case on appeal in CA507/2010, CA524/2010, CA725/2010 and CA726/2010 is granted. The case on appeal must be filed and served on or before 23 May 2011.
BThe security for costs in the sum of $5,560 already paid in CA524/2010 is to be security for costs in Ms Gallagher’s favour with respect to any of the appeals and may be called on by her should she succeed in securing a costs order against Mr Rabson in his personal capacity or as trustee or both. No further security for costs is payable.
C If an extension of time for bringing a cross-appeal is required, it is granted.
DMr Rabson must pay outstanding Court fees on or before 23 May 2011:
·Filing fee $900
·Setting down fee $2,200

E Counsel must file on or before 23 May 2011 a joint memorandum advising what has happened with respect to the appointment of a new trustee of the Gallagher-Rabson Family Trust and dealing with the matters raised in [21] of the reasons.

F Mr Rabson must file and serve on or before 27 May 2011:

(a)his submissions with respect to all matters in issue on any appeal, including matters raised by Ms Gallagher’s cross-appeal; and
(b)a list of the issues he sees arising.

G Ms Gallagher must file and serve on or before 3 June 2011:

(a) her submissions with respect to all matters in issue on any appeal and her cross-appeal; and
(b) a list of the issues she sees arising (if they differ from Mr Rabson’s issues).

H Mr Rabson must arrange for sealing of the two High Court judgments under appeal and must then file copies of the sealed judgments in this Court before the hearing of these appeals.

Costs on this application reserved.

REASONS OF THE COURT

(Given by Chambers J)

Application to extend…

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 [2011] NZCA 204
Case: [2011] NZCA 204
Decision Date: 19 May 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to consider four appeals and a cross-appeal stemming from a de facto relationship between Malcolm Rabson and Linda Gallagher. The primary dispute involved the division of their relationship property, which was complicated by the presence of two family trusts. The initial decision was made in the Family Court, where Judge Ullrich QC held that a Lotto ticket that won a $1.3 million prize was relationship property. This decision was appealed to the High Court, where Wild J subsequently delivered two judgments on 23 July and 1 October. Wild J granted Mr Rabson leave to appeal against his decision on the Lotto proceeds. Four appeals have been filed in the Court of Appeal, with two by Mr Rabson in his personal capacity and two by the Malcolm Rabson Family Trust. Ms Gallagher has also filed a cross-appeal. The primary legal issues the court had to decide included whether to grant an extension of time for filing the case on appeal, the appropriateness of security for costs, and the need for a new trustee for the Gallagher-Rabson Family Trust. The court found that the interests of justice demanded an extension of time for filing the case on appeal due to several factors, including the relatively short delay, Mr Rabson's prompt application for a fixture, and the significant sums of money involved. The court also decided that the existing security for costs could be called upon by Ms Gallagher should she succeed in securing a costs order against Mr Rabson. Additionally, the court mandated that counsel must file a joint memorandum detailing the appointment of a new trustee for the Gallagher-Rabson Family Trust. The court further directed that Mr Rabson must file his submissions by 27 May 2011, while Ms Gallagher must file hers by 3 June 2011. The court also ordered Mr Rabson to seal the High Court judgments and file copies in this Court before the hearing of the appeals. Finally, the court reserved costs on this application, noting that it expected the panel hearing the appeal would likely award costs in favour of Ms Gallagher.

Orders