Roberts v Roberts
[2020] NZHC 2193
•27 August 2020
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 makes under the PRA.
6 May 2020
[7] On 6 May 2020, Judge Burns conducted a judicial telephone conference with counsel. Between them, counsel filed five memoranda in advance of the conference, comprising 30 pages of submissions on the directions the Judge should make.
1 High Court Rules 2016, r 20.4(3).
2 Property (Relationships) Act 1976, s 24(2).
[8] For present purposes, the important point is counsel for Mr Roberts, Mr Galbraith QC, submitted Mrs Roberts’ application for an extension of time under the PRA should be heard and determined first, and independently of her other applications, because if there were no extension then that would be the end of the proceedings under the PRA.3 Alternatively, Mr Galbraith proposed a half day hearing so that the relevant issues could be addressed in greater detail.
[9] For her part, Ms Crawshaw QC, counsel for Mrs Roberts, proposed the Judge direct a single hearing at which the Court would hear the applications for the extension of time, to set aside the agreement, and the appropriate orders for division if the agreement were set aside. The rationale for this approach is there may be no clear demarcation between the applications, that is the Court’s decision on extending time under the PRA may be affected by its view of the merits of the other applications.4
[10] The Judge made directions in the course of the conference, although it subsequently transpired counsel differed as to the content or effect of some of those directions. The Court then sent a typed minute to counsel on 6 May 2020, the following paragraphs of which are the focus of the proposed appeal:5
[2]... I make the following directions:
(a)I direct that a half day fixture be set down on the next available occasion after the expiration of the timetable orders I am about to make to determine whether the PR application should be heard separately, in other words, whether there should be severance of whether the agreement is set aside or not from the substantive issues (in the event that the agreement is set aside).
(b)In addition, I am satisfied that the issue of waiver of legal privilege should also be determined at the same time. I consider that the application for leave to bring out of time and the substantive issues should be heard together.
[11] Mr Roberts’ proposed appeal proceeds on the basis the effect of the Judge’s directions is that:
3 Memorandum of Counsel for the Respondents for the Registrar’s Review dated 12 February 2020 at [10].
4 Memorandum of Counsel Opposing the Respondents’ Applications dated 28 February 2020 at [20].
5 Roberts v Roberts FC Auckland FAM-2019-004-1192, 6 May 2020 (Minute of Judge Burns).
(a)there is to be a half day hearing on whether the application to set aside the agreement should be heard separately from or together with the applications for division and under the FPA (see [2](a));
(b)whatever the outcome of that half day hearing, Mrs Roberts’ application for an extension of time under the PRA is to be heard at the same time as the applications for division and under the FPA (see[2](b));
and that the direction in (b) is both wrong and potentially contrary to (a) because the Court would not have jurisdiction to hear Mrs Roberts’ application to set aside unless it had first granted Mrs Roberts the extension of time she requires.
[12] Ms Crawshaw’s submission is that the directions in [2](a) and [2](b) of the minute reflect the Judge’s oral directions, and they are logical and unremarkable.
[13] As I understood it from Mr Galbraith’s submissions to me, he is not averse to Mrs Roberts’ application for an extension of time being heard at the same time as her application to set aside the agreement. However, he does oppose a hearing of the application to set aside prior to, and independently of, Mrs Roberts’ application for an extension of time because of the jurisdictional point. Moreover, whatever procedural course is adopted, it is important the parties are given reasons as to why a particular approach is preferred.
Discussion
[14] I propose to grant Mr Roberts’ application, but on the condition set out below. Although the delay in lodging the application for extension, a little less than three weeks, was perhaps greater than it should have been, there is no discernible prejudice to Mrs Roberts caused by the delay. As I understand it, Mr Roberts was required to complete extensive affidavit evidence in the intervening period, so he was not inactive.
[15] That said, I consider it is quite possible the appeal will prove unnecessary and, accordingly, the extension of time is granted on condition the appeal not be pursued until after the half day hearing the Judge directed and the parties know the outcome. The Judge who presides at that hearing will need to make the decision Judge Burns
identified, that is whether the application to set aside is to be heard separately from or together with the applications for division and under the FPA, and give such directions as are apposite to his or her decision. For myself, I would not have considered any view Judge Burns offered in [2](b) as to when Mrs Roberts’ application for extension of time should be heard binding on the Judge presiding at the hearing, although I may be quite wrong and, of course, that Judge may take a different view.
[16] The short point, however, is the procedural course the Family Court considers it appropriate to adopt in the particular circumstances of this case, and why, will be known after that hearing. Any appeal(s) considered necessary can then be brought, or brought on as the case may be.
[17] Lastly, and as discussed with counsel, I am still not entirely persuaded there is a right of appeal to this Court against what, on its face, is a direction made in a judicial conference. That said, counsel take a different view and referred me to MacKenzie J’s decision in Dunsford v Shanly and, yesterday morning, Brewer J’s in L v L.6 In due course it may be necessary to revisit this issue, given the extension of time I have granted.
Result
[18] I grant this application for an extension of time in which to bring an appeal. Given that an extension of time is always an indulgence, it will be for Mr Roberts to meet Mrs Roberts’ costs.
[19] Counsel should advise the Court when they know if the appeal is to be pursued. In any event, the matter will be called in the Civil Appeals List at 9 am, 3 November 2020. In case it is required, I reserve leave to apply.
Peters J
6 Dunsford v Shanly [2012] NZHC 257; and L v L [2017] NZHC 2529.
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