Shannon v Shannon - [2005] NZCA 83

IN THE COURT OF APPEAL OF NEW ZEALAND
CA192/04
BETWEENALAN LINDSAY SHANNON

First Appellant
ANDFOREST PARK (NEW ZEALAND) LIMITED

Second Appellant
ANDFOREST PARK FP2 LIMITED

Third Appellant
ANDFOREST PARK HOLDINGS LIMITED

Fourth Appellant

ANDCHRISTINE ROBYN SHANNON

First Respondent
ANDCHRISTINE FORBES

Second Respondent

Hearing:10 February 2005 and 3 March 2005

Court:Glazebrook, Hammond and O'Regan JJ
Counsel:A P Duffy QC for Appellants

H M Aikman and J J Manning (on 10 February 2005 only) for First Respondent
M S Anderson for Second Respondent (leave to withdraw granted on 10 February 2005)

Judgment:14 April 2005

JUDGMENT OF THE COURT

The appeal against the striking out of the statement of claim dated 6 July 2004 and the amended statement of claim dated 20 July 2004 is dismissed. Mr Shannon is to pay costs of $6,000 to Mrs Shannon plus reasonable disbursements, to be set by the Registrar in the absence of agreement.
REASONS
(Given by Glazebrook J)
Table of Contents
Para No

Introduction  [1]
Procedural history  [9]
Cartwright J’s judgment  [21]
The original and amended statements of claim  [48]
Potter J’s judgment on the strike-out application  [53]
Mr Shannon’s submissions  [71]
Mrs Shannon’s submissions  [88]
The principles in England and Australia  [102]
The principles in New Zealand  [119]
Discussion  [126]
           Fraud adequately pleaded?  [130]
           New evidence?  [132]
           Reasonably discoverable?  [142]
           Material evidence?  [144]
           Decisive evidence?  [152]
           Other matters  [153]
Conclusion and costs  [155]
Introduction
[1]       This appeal is concerned with the circumstances in which an action alleging that a judgment has been obtained by fraud should be allowed to proceed.
[2]       Mr and Mrs Shannon were married on 22 June 1974 and have one son, Grant, who was born on 14 June 1977. It is common ground that they separated in 1985 or 1986, at least for a period. Mr Shannon contends that they never reconciled and, indeed, that he was in a stable de facto relationship with another woman, Ms Donna Hamilton, between 1988 and 1993. Mrs Shannon, however, contends that she and Mr Shannon reconciled in 1988, eventually parting at Easter 1997 after a major disagreement.
[3]       Mr Shannon accumulated significant assets between 1993 and 1997 as a result of his association with an American company involved in helicopter contracting work in Malaysia. Whether the parties separated in 1985 or 1997, therefore, has a major impact on the extent of the relationship property.
[4]       Cartwright J (as she then was) dealt with the preliminary issue of the date of separation. In a judgment of 29 May 2000, she accepted Mrs Shannon’s version of events.
[5]       Mr Shannon, on 6 July 2004, just as the substantive proceedings on the division of relationship property were finally to be heard, filed proceedings alleging that Cartwright J’s judgment was obtained by fraud. An amended statement of claim was filed on 20 July 2004.
[6]       By judgment of 16 August 2004, Potter J struck out both statements of claim on the basis that they disclosed no reasonable cause of action and were an abuse of the process…

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.

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Details

Case: [2005] NZCA 83
Decision Date: 14 April 2005

CaseChat Overview and Summary

This appeal is concerned with the circumstances in which an action alleging that a judgment has been obtained by fraud should be allowed to proceed. Mr and Mrs Shannon were married and separated in 1997. The parties had a significant dispute over the division of their relationship property. The dispute ultimately involved a preliminary issue of fact: whether the parties had reconciled and continued to live together as husband and wife in 1988 or had separated in 1985. Cartwright J found that the parties had separated in 1997 and not in 1985. Mr Shannon appealed against that finding but the appeal was dismissed. Mr Shannon then sought to set aside the judgment on the basis that it had been obtained by fraud. Mrs Shannon applied to strike out the proceedings. Potter J granted the application and struck out both the original and amended statements of claim. The appeal against that decision was dismissed. Mr Shannon's claim failed because it was not based on new evidence. Evidence that was said to be new was, in fact, available at the time of the original hearing and should have been adduced. The evidence, even if new, was not material or decisive. The Court also held that the proceedings were an abuse of process.

Orders