Rabson v Gallagher
[2011] NZCA 204
•19 May 2011
| 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 |
| AND LINDA GALLAGHER |
| AND MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST |
| AND LINDA GALLAGHER AND MALCOLM EDWARD RABSON AS TRUSTEES OF THE GALLAGHER-RABSON FAMILY TRUST |
| CA524/2010 |
| AND BETWEEN MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST |
| AND LINDA GALLAGHER |
| AND MALCOLM EDWARD RABSON |
| AND LINDA GALLAGHER AND MALCOLM RABSON AS TRUSTEES OF THE GALLAGHER-RABSON FAMILY TRUST |
| 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 |
| 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 time for filing the case on appeal
Malcolm Rabson and Linda Gallagher were in a de facto relationship for six years. They separated in 2006. Court proceedings were initiated after they were unable to resolve their relationship property differences. Their property interests were complicated by the presence of two family trusts, the Malcolm Rabson Family Trust and the Gallagher-Rabson Family Trust.
Litigation between the couple commenced in the Family Court. On 28 August 2009, Judge Ullrich QC held that a Lotto ticket that had won a $1.3 million prize was the parties’ relationship property.[1] Mr Rabson appealed against that finding. That appeal was heard by Wild J in May last year. His Honour also heard at the same time the balance of the relationship property dispute, the Family Court having transferred the balance to the High Court in August 2009. Wild J subsequently delivered two judgments, the first on 23 July last year and the other on 1 October.[2] Subsequently, Wild J granted Mr Rabson leave to appeal against his decision on appeal with respect to the status of the Lotto proceeds.
[1] Gallagher v Rabson FC Wellington FAM 2007-091-892, 28 August 2009.
[2] Rabson v Gallagher HC Wellington CIV 2008-485-2279, 23 July 2010 and 1 October 2010.
Four appeals have been filed in this court. Two of them arise from Wild J’s 23 July 2010 decision, one of them by Mr Rabson in his personal capacity (CA507/2010) and the other by the Malcolm Rabson Family Trust (CA524/2010). Two further appeals flow from the 1 October 2010 decision, one by Mr Rabson personally (CA726/2010) and the other by the Malcolm Rabson Family Trust (CA725/2010). Ms Gallagher has also cross-appealed. The appeals and cross-appeal are due to be heard on 21 and 22 June.
Suffice to say that the appeals have got into a great procedural muddle. Most of the blame for that state of affairs lies on Mr Rabson, although it should be noted he has been without a lawyer for a significant period since filing the appeals. A particular problem that has arisen is that Mr Rabson failed to file “the case on appeal within six months after [any of the appeals were] brought”. That led to the appeals being treated as having been abandoned in terms of r 43(1) of the Court of Appeal (Civil) Rules 2005. This has forced Mr Rabson now to apply for an extension of the six month period under r 43(2).
Ms Levy, for Ms Gallagher, has opposed the application for an extension of time for filing the case on appeal. She submits that Mr Rabson was guilty of a number of defaults and delays in the Family Court and High Court. She submits that the proposed appeal has no public interest and that it is essentially an appeal on findings of fact by the two trial judges. She also submits that the delay in filing a case on appeal has been inadequately explained. Even if we were minded to allow some of the appeals to proceed, she submits we should not allow a second appeal with respect to the Lotto proceeds, there having already been an appeal to the High Court on that topic and both Judge Ullrich and Wild J having concluded the proceeds were relationship property.
While there is merit in those arguments, we have decided that the interests of justice demand that an extension of time for filing the case on appeal be granted. We have reached that decision for the following reasons, taken together.
First, although Mr Rabson has been guilty of delay, the overall delay since Wild J’s second judgment (of 1 October last year) has not been very long. Mr Rabson did apply promptly for a fixture.
Secondly, Mr Rabson, who is now represented by Ms Hunter, has confirmed that he will do everything necessary to ensure that the hearing date next month is maintained. So the appeal will be heard no later than the time Ms Gallagher always envisaged. Further, Ms Hunter, who has only recently been instructed, has sought only a week’s extra time for the preparation of submissions. Given that we will be adjusting the date for Ms Gallagher’s submissions to compensate, that week’s grace causes no prejudice.
Thirdly, Mr Rabson has been acting for himself. Some latitude in compliance with case management requirements must be permitted to litigants in person if overall justice is to be done.
Fourthly, significant sums of money are involved in the dispute. With respect to everything but the Lotto proceeds, this is a first appeal.
Finally, although it is difficult for us to measure the merits of the appeal, there is no suggestion it is brought other than in good faith.
We have considered whether we should pick and choose as to what we should allow to go forward. In the end, we have concluded that the parties should be able to argue all issues that remain in dispute. It is true that the dispute concerning the Lotto proceeds will be a second appeal. Against that, Wild J did determine it was a proper issue to come before this Court. We accept he was influenced in that decision by the fact the balance of the dispute would be coming here as of right as a first appeal. There is no particular reason why we should single out the appeal with respect to the Lotto proceeds as not worthy of going forward.
We now go on to explain certain matters concerning the orders we have made:
Order A: filing of case on appeal
Ms Hunter and Ms Levy agreed, in the event we let all matters go forward (which we have), that there should be a single case on appeal for the four appeals. Ms Hunter told us she has already prepared an index for the case on appeal. She indicated she could file the case on appeal by this Friday. If that is possible, well and good. It must be filed and served, however, by next Monday.
Order B: security for costs
The Malcolm Rabson trust has paid security for costs in the sum of $5,560 in CA524/2010. Security for costs in the other appeals has become rather confused. We do not go into detail here, as it is unnecessary to do so in light of concessions made by both Ms Hunter and Ms Levy. Ms Hunter conceded that that sum could be called upon by Ms Gallagher should she succeed in securing a costs order in her favour, regardless of:
(a)which appeal or appeals or cross-appeals she succeeded in; and
(b)whether the costs order was awarded against Mr Rabson in his personal capacity or as trustee or both.
Ms Levy, for her part, conceded that, in light of Ms Hunter’s concession, no further security was warranted.
Order C: cross-appeal
It is uncertain whether Ms Gallagher needs an extension of time for bringing her cross-appeal which relates solely to the value of a VW Passat car. On one view, no extension of time is required. But, even if it is, we grant that extension. We have indulged Mr Rabson; it is only fair that Ms Gallagher, if an indulgence is required, should also be granted one. The issue involves a comparatively small amount of money. Wild J valued the vehicle at $60,000. Ms Gallagher says it should have been given a value of $45,000. She refers to a misunderstanding as to what was in issue in this regard. We have no doubt that Ms Gallagher should be able to pursue this issue, which is likely to take very little time to resolve.
Order D: filing fees
Mr Rabson has not paid filing or setting down fees with respect to his personal appeals. The sums in question are $900 for a filing fee and $2,200 for a setting down fee. Those sums must be paid by next Monday. We are indulging Mr Rabson in giving him further time to pay. Technically he was not able to seek an extension of time for filing a case on appeal in CA524/2010 because of his non-payment: see reg 7(3) of the Court of Appeal Fees Regulations 2001.
Order E: trustees of the Gallagher-Rabson Family Trust
Wild J, in his 1 October 2010 judgment, removed Mr Rabson and Ms Gallagher as trustees of the Gallagher-Rabson Family Trust. He made the following additional order:[3]
In their stead I appoint a new trustee who is to be a solicitor of standing practising in Wellington in the area of trusts and conveyancing. If [Mr Rabson] and [Ms Gallagher] cannot agree by 8 October 2010 upon a suitable trustee in whom each has confidence, then the new trustee is to be appointed by the President of the Wellington Branch of the New Zealand Law Society. Ms Jeffcoat, solicitor for [Ms Gallagher], is to take responsibility for ensuring that that appointment is made. She is to confirm the terms of the letter of request to the President with both the solicitors for [Mr Rabson] and the solicitor for the [Malcolm Rabson Family Trust] before sending the letter.
[3] At [9](2).
Although subsequently Wild J stayed execution on parts of his two judgments, the orders removing Mr Rabson and Ms Gallagher as trustees and appointment a new trustee were not part of the orders stayed.[4] We have not been told what has happened in that regard.
[4]Rabson v Gallagher HC Wellington CIV2008-485-2279, 1 October 2010 (ruling as to stay of execution of judgment) at [4].
Accordingly, we require counsel to file a joint memorandum by next Monday advising what has happened with respect to the appointment of a new trustee of the Gallagher-Robson Family Trust. Has a new trustee been appointed? Who is he or she? Has he or she been served with these appeal papers? Why has nothing been done to substitute him or her as the trustee for the Gallagher-Rabson Family Trust, which is after all the third respondent in each of the appeals? Is that trust affected in any way by the appeal or the cross-appeal? The memorandum should answer these questions.
Glazebrook J will case-manage this appeal. She will consider the joint memorandum when it is filed. He or she may then call a telephone conference to discuss whether the new trustee should be substituted as third respondent. There may need to be consequential directions if the new trustee wishes to play a role in the appeal.
Order F: submissions
Mr Rabson’s submissions must be filed and served on or before 27 May 2011. We make the following observations concerning these submissions. First, they should deal with all matters in issue on any appeal.
Secondly, we had concerns at the hearing about Mr Rabson being represented in his two capacities by the same solicitors and counsel. Initially, he was represented by different solicitors. Before Wild J, he had his own counsel and the Malcolm Rabson Family Trust had a different counsel. We were assured by counsel that having common representation should not cause a problem in the circumstances of this case as, wherever there is a conflict between Mr Rabson and the Malcolm Rabson Family Trust, Mr Rabson intends to argue, as his primary submission, that the trust’s interests should be preferred. That being the case, we do not see a difficulty about joint representation.
Ms Levy is right, however, that the interests of the trust and of Mr Rabson are different. That is reflected in the fact that each has brought separate appeals. To reflect counsel’s assurance that Mr Rabson is advancing the interest primarily of the Malcolm Rabson Family Trust, we consider it would be appropriate that the trust’s arguments be advanced first in the written submissions, to be followed by Mr Rabson’s personal submissions.
Thirdly, because of the delay in the filing of submissions (for which Mr Rabson must take primary responsibility), he should address in his submissions his answer to Ms Gallagher’s cross-appeal. That cross-appeal, as we have said, is within a narrow focus. It is clear from the notice of cross-appeal what the issue is. He should be easily able to address the cross-appeal even without having seen Ms Gallagher’s submissions.
Finally, Mr Rabson should also file and serve a list of the issues he sees arising. We see that as desirable as at the moment the points of dispute are spread across four notices of appeal and the cross-appeal. We make order F(b) in place of the normal list of issues required to be filed under r 42A not later than five working days before the hearing. (This order constitutes a contrary direction in terms of r 42A(4).)
Order H: sealing of the High Court judgments
Neither High Court judgment has yet been sealed. They should have been: see High Court Rules, rr 11.11 and 11.13. The judgments must be sealed without delay. Copies should then be filed in this court.
Order I: costs
While we reserve costs, we expect the panel hearing this appeal will probably award costs in respect of this application in favour of Ms Gallagher.
Other matters
Ms Levy has raised the issue of whether Mr Rabson is entitled to be the sole trustee of the Malcolm Rabson Family Trust. The trust deed provides for a minimum of two trustees. Tristan Will has resigned as a trustee. (We have removed his name as a trustee from the heading.) We have heard no argument on that matter. If Ms Levy wishes to pursue this issue, it can be raised in submissions and will be dealt with by the panel hearing the appeal.
Secondly, the time limits imposed in this judgment must be adhered to. We ask the case officer to keep track of the timeline and to advise Glazebrook J immediately if there is a breach of any of the orders. Any breach may lead to the appeal or cross‑appeal being dismissed summarily for non-prosecution.
Out of an abundance of caution, we make clear that the hearing date of 21 and 22 June for all the appeals and the cross-appeal is confirmed.
Solicitors:
Jackson Russell, Auckland for Malcolm Rabson in his personal capacity and as the trustee of the Malcolm Rabson Family Trust
Mary Jeffcoat, Wellington for Linda Gallagher in her personal capacity
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