Roberts v Roberts - [2020] NZHC 2193

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1006

[2020] NZHC 2193

UNDER Part 20 of the High Court Rules 2016, part 9 District Court Act 2016 and part 7 of the Property (Relationships) Act 1976

BETWEEN

JOSEF CHRISTOPHER ROBERTS

Applicant

AND

MIRIAM ROBERTS

First Respondent

Continued over

Hearing: 25 August 2020

Appearances:

A R Galbraith QC and G M Sandelin for Applicant V A Crawshaw QC for Respondent

Judgment:

27 August 2020

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 27 August 2020 at 11 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Morris Legal, Auckland
Glaister Ennor, Auckland

Counsel: A R Galbraith QC, Auckland
G M Sandelin, Auckland
V A Crawshaw QC, Auckland

ROBERTS v ROBERTS [2020] NZHC 2193 [27 August 2020]

AND
JOSEF CHRISTOPHER ROBERTS AND 729 TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE ROBERTS FAMILY TRUST

Second Respondents

JOSEF CHRISTOPHER ROBERTS AND 729 TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE RH TRUST

Third Respondents

JOSEF CHRISTOPHER ROBERTS AND 729 TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE JCR FAMILY TRUST

Fourth Respondents

JOSEF CHRISTOPHER ROBERTS AND 730 TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE JCR INVESTMENT TRUST

Fifth Respondents

CMJR TRUSTEE LIMITED AS TRUSTEE OF THE CMJR TRUST

Sixth Respondent

DOLPHIN CORPORATE TRUSTEE LIMITED AS TRUSTEE OF THE DOLPHIN TRUST

Seventh Respondent

NEO COROPROATE TRUSTEES LIMITED AS TRUSTEE OF THE NEO TRUST

Eighth Respondent

[1] The applicant, Mr Roberts, seeks an extension of time in which to bring an appeal.1

[2] Rule 20.4(2)(b) High Court Rules 2016 provides an appeal must be brought within 20 working days after the decision appealed against is given. In this case, the decision, if there was one, was given on 6 May 2020, requiring any appeal to be brought by 4 June 2020.

Background

[3] In December 2019, Mrs Roberts, the respondent to this application to extend time, commenced proceedings in the Family Court at Auckland seeking orders under the Property (Relationships) Act 1976 (“PRA”) and s 182 Family Proceedings Act 1980 (“FPA”). Mr Roberts, Mrs Roberts’ former husband, is the first respondent to the proceedings. The second to eighth respondents are trustees of various trusts.

[4] Under the PRA, Mrs Roberts seeks an order setting aside an agreement she and Mr Roberts made pursuant to s 21A PRA (“agreement”). If she obtains that order, Mrs Roberts seeks orders for the determination and division of relationship property.

[5] Mrs Roberts requires, and has sought, an extension of time to bring her proceedings under the PRA, her time for bringing proceedings as of right having expired in April 2016.2 Whether Mrs Roberts should have that extension in the circumstances of this case is very contentious.

[6] Mrs Roberts’ application under the FPA is neither out of time nor dependent on setting aside the agreement, but the Court’s determination of that application may well be affected by the orders, if any, it…

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 Roberts v Roberts

Details

AGLC: Roberts v Roberts [2020] NZHC 2193
Case: [2020] NZHC 2193
Decision Date: 27 August 2020

CaseChat Overview and Summary

This case involved an application by Mr Roberts to extend the time in which to bring an appeal against directions made by Judge Burns in the Family Court at Auckland. Mrs Roberts commenced proceedings under the Property (Relationships) Act 1976 and the Family Proceedings Act 1980. The core issue in this appeal was whether the directions made by Judge Burns were erroneous or potentially contrary to one another, particularly in relation to the timing and scope of a half day hearing on the application to set aside an agreement made between the parties. The applicant argued that the directions required the application for an extension of time to be heard at the same time as the application to set aside the agreement, which was contrary to jurisdictional requirements. The court considered the submissions from both sides and concluded that while the directions might have been ambiguous, the appeal would likely be unnecessary as the procedural course to be adopted would become clear after the half day hearing. The court granted the extension of time on the condition that the appeal not be pursued until after the hearing and the outcome was known.

The court granted the application for an extension of time with the condition that the appeal would not be pursued until after the half day hearing in the Family Court. The court emphasized the importance of the parties being given clear reasons for any procedural decisions made. The court also reserved the right to revisit the issue of the right of appeal against the directions made in the judicial conference, given the extension of time granted. The case highlights the need for clear and precise directions in complex family law cases and the importance of providing reasons for procedural decisions.

Orders