Sanders v Sanders - [2010] NZCA 176

NOTE: HIGH COURT SUPPRESSION ORDERS REMAIN IN FORCE
IN THE COURT OF APPEAL OF NEW ZEALAND
CA279/2010
[2010] NZCA 176
BETWEENJOHN ROBERT SANDERS

Applicant

ANDYVONNE JETTI SANDERS

First Respondent
ANDNATIONAL BUSINESS REVIEW

Second Respondent

Hearing:6 May 2010 (By teleconference)

Court:William Young P, O'Regan and Arnold JJ
Counsel:W Akel and R A Hacking for Applicant

D A Hollings QC for First Respondent
J Anderson (in person) for Second Respondent

Judgment:10 May 2010 at 3 pm

JUDGMENT OF THE COURT

A            The application for a stay is dismissed.
B            Costs are reserved.
____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1]        The applicant applied late on 5 May 2010 for a stay of a judgment of the High Court giving leave to the second respondent, the National Business Review, to publish certain details relating to the litigation between the applicant and the first respondent. The NBR was to go to press at 1 pm, and we therefore heard from counsel and Mr Anderson for NBR by telephone at midday on 6 May 2010. At the end of the hearing we refused the stay and said that we would provide our reasons in writing later. We now set out those reasons.
Background
[2]        Mr and Mrs Sanders are parties to an agreement relating to relationship property entered into pursuant to s 21 of the Property (Relationships) Act 1976 on 16 May 2008. The agreement was entered into after the breakdown of their marriage and after there had been a mediation as to the distribution of relationship property and property held by trusts associated with them. Mr Sanders claims that the effect of the agreement is to cause serious injustice or alternatively that the agreement was based on a common mistake as to the value of the assets to which it relates.
[3]        The application to set aside the agreement came before Stevens J in the High Court. During the High Court hearing Mr Anderson sought leave under s 11B(3) of the Family Courts Act 1980 for NBR to publish certain details about the litigation. After full argument, Stevens J issued an oral judgment on 30 April 2010 giving leave to report certain details and refusing leave to report certain other details. In particular, the NBR was permitted to report the names of the parties and the address of one of the principal assets dealt with in the s 21 agreement, a property in Remuera Road, Auckland.
[4]        Acting in accordance with that leave, the NBR published an article about the case on its website, accessible only to paid subscribers to that website. This article was posted immediately after Stevens J delivered his judgment on 30 April 2010, and remains on the site now. The NBR wishes to publish a similar article in its print edition which will appear on Friday 7 May 2010. As noted earlier, the deadline for copy for that edition was 1 pm on 6 May 2010.
[5]        On Tuesday 4 May 2010, counsel for Mr Sanders filed…

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 Sanders v Sanders

Details

AGLC: Sanders v Sanders [2010] NZCA 176
Case: [2010] NZCA 176
Decision Date: 10 May 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Sanders v Sanders involved an application for a stay of a High Court judgment permitting the publication of certain details relating to a litigation between John Robert Sanders and Andyvonne Jetti Sanders. The National Business Review (NBR) sought to publish details about the property agreement between the parties. John Sanders applied for a stay of the High Court judgment, which was denied by the Court of Appeal. The legal issues revolved around the criteria for granting a stay, including whether the appeal may be rendered nugatory by the lack of a stay, the effect of the stay on the successful party, the applicant's bona fides, the effect on third parties, the novelty and importance of the questions involved, the public interest in the proceeding, and the overall balance of convenience and the status quo.

The Court of Appeal found that the appeal was not rendered entirely nugatory as the High Court hearing was adjourned until August, allowing time for the appeal to be heard before further publication. The Court also found that the NBR would not be injuriously affected by the stay as the impact would be one of delay rather than anything more substantive. The Court noted that the publication had already occurred, and the delay in pursuing the appeal and the stay had allowed for some publication already. The Court agreed with the High Court's assessment that the overall balance of convenience was to permit publication of the limited details for which leave had been given. The Court did not see any utility in preventing the publication in the print edition and would not be prepared to order the NBR to discontinue publication on its website given the delay in pursuing the appeal and the stay. The Court found that there would be no further developments in the litigation until August, and the appeal could proceed before then if John Sanders wished to pursue it to prevent publicity arising from the resumed hearing.

The Court of Appeal dismissed the application for a stay and reserved costs.

Orders