Reid v Reid

[2014] NZHC 1954

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4293 [2014] NZHC 1954

BETWEEN

AIDAN ROBERT REID

Appellant

AND

BRIDGETTE ETI REID First Respondent

DIANE JULIE LAFAIALII Second Respondent

Hearing:	On the papers
Counsel:	Appellant in person J A Adams for First Respondent Second Respondent in person
Judgment:	19 August 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on 19 August 2014 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

J A Adams, Barrister, Manukau

Copy to: Appellant

Second Respondent

REID v REID [2014] NZHC 1954 [19 August 2014]

[1]      Mr Reid seeks leave to appeal my decision dated 12 June 2014 in which I dismissed his appeal from a decision of Judge Jan Walker in the Family Court.1   The parties are agreed that I should deal with the application on the papers.

[2]      I record at the outset that although a point was taken by Mrs Reid and Mrs Lafaialii about the application being brought out of time, it was certainly filed (just) within the 20 working days stipulated in rule 20.3.  When service was effected is not entirely clear to me.  In any event I propose to deal with the application on its merits.

Relevant principles

[3]      The cases make it clear that in order to grant leave to bring a second appeal the Court must be satisfied that the proposed appeal:

(a)       raises some question of law or fact capable of bona fide and serious argument; and

(b)involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.

[4]      Other relevant considerations include the desirability of finality of litigation and the overall interests of justice.

[5]      At the heart of Mr Reid’s case are two agreements:

(a)       a property sharing agreement entered into between him and his wife under s 21 of the Property (Relationships) Act 1976; and

(b)a  subsequent  agreement  entered  into  between  Mrs  Reid  and  her mother Mrs Lafaialii, without the knowledge of Mr Reid.

[6]      The central issue was the relationship between these two agreements and,

more  particularly,  the  effect  of  the  latter  on  Mr  Reid’s  relationship  property

entitlement under the former.

1      Reid v Reid [2014] NZHC 1323.

[7]      I do not intend to summarise the contents of my judgment here.  For present purposes it suffices to repeat my conclusion, which was as follows:

[44]      In my view Judge Walker was correct to hold that Mrs Lafaialii was entitled to receive half of the sale price of $348,768.96, less the amount of her personal debt to the Bank. Moreover, for the reasons I have just given, that was also the fair result. The fact that Mr and Mrs Reid ended up with less than nothing is not a function of some inequity in the property sharing agreement but rather of their excessive indebtedness to the Bank, which had been secured (in the main) by the Orbit Place property. The Bank was entitled to settle that indebtedness out of the proceeds of sale. And because of the Bank's position of priority under the mortgage and other loan instruments it is Mrs Lafaialii, not Mr Reid, who has, in fact, borne the resulting loss.

[45]     It  was  my  sense  from  listening  to  Mr  Reid's  submissions  that underlying his concerns was a feeling of disenfranchisement in relation to these relationship property matters. This feeling no doubt has its origins in the fact that he was never a registered proprietor of the family home. And it would subsequently (and consequently) have been reinforced both by the existence (unbeknownst to him) of the property sharing agreement between Mrs Reid and Mrs Lafaialii and by his ultimate exclusion from the sale and settlement of the house. I note that Judge Walker made observations of a similar kind at [130] of the judgment under appeal.

[46]   But however real or understandable Mr Reid's sense of disempowerment might be, it does not mean that a legal wrong has been done or that a remedy for him exists. My own view of the matter is that Judge Walker's analysis has been generous to him. Whatever the alternative, hypothetical, scenarios put forward by Mr Reid about his lost opportunity to refinance his business, the inescapable truth is that his, his wife's, and his business's liabilities considerably outweighed their assets. A relationship property claim cannot conjure away that reality.

[8]      Mr Reid’s application for leave was very comprehensive, as was his further memorandum filed in response to the (brief) notice of opposition.  But I agree with Ms Reid and Mrs Lafaialii that all either of Mr Reid’s documents does, is rehearse the  arguments   that   were  made,   comprehensively  considered,   and   ultimately dismissed by both the Family Court and this Court. What the application does not do is raise any identifiable question of law or fact that is capable of bona fide and serious argument.

[9]      And while I accept that Mr Reid perceives that his private interest in the matter is of sufficient importance to outweigh the cost and delay of a further appeal, that is simply not the case.  As noted in the passage I have quoted from my judgment above, the inescapable reality is that there is no relationship property to be divided;

there is no money.  Moreover the point made at [44] of my judgment – that it is Mrs Lafaialii rather than Mr Reid who has borne the relevant relationship property loss (and has borne further losses as a result of the litigation and Mr Reid’s inability to pay court costs) means that the overall interests of justice militate strongly against allowing a further appeal.

[10]     The application for leave to appeal is dismissed accordingly.

Rebecca Ellis J