SJM v WMM

[2012] NZHC 2659

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2012-488-592 [2012] NZHC 2659

BETWEEN  SJM Appellant

ANDWMM Respondent

Hearing:         11 October 2012 (by telephone) Counsel:        C L Cook for Appellant

R J Harte for Respondent

Judgment:      11 October 2012

JUDGMENT OF HEATH J

This judgment was delivered by me on 11 October 2012 at 4.15pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Cook Westenra, PO Box 127, Whangarei

Rob Harte, PO Box 4007, Kamo

SJM V WMM HC WHA CIV 2012-488-592 [11 October 2012]

[1]      Ms M appeals against a judgment given in the Family Court at Whangarei on

6 August 2012.[1]     Among other things, Judge Lindsay, in that decision, rejected claims for unequal sharing of relationship property,[2] an interest based on the needs of a child[3]  and a claim based on a remedial constructive trust.  In essence, it is those decisions that are challenged.  Counsel agree that the amount at stake, should Ms M be successful is something in the order of $50,000 to $100,000.

[1] WMM v SJM [2012] NZFC 5019.

[2] Property (Relationships) Act 1976, s 13.

[3] Ibid, s 26.

[2]      A case management conference was held today to make directions for the appeal.[4]    There is no dispute about many of the directions to be made.   The only significant  matter in  issue is  the quantum  of security for costs.    Following the telephone conference, I advised counsel that I wished to review Judge Lindsay’s decision and would give a judgment this afternoon.

[4] High Court Rules, Schedule 6.

[3]      Mr M and Ms M began a de facto relationship in about September 1994 and separated on 28 June 2006.  Ms M’s daughter from a prior relationship suffers from a severe disability.  Not only does this mean that SJM is required to spend time caring for her but it has had an adverse effect on her own health.   The circumstances surrounding the daughter’s health give rise to the s 26 claim.

[4]      Although I have not had an opportunity to read the notes of evidence, it is fair to say that success on the appeal to any material degree might be somewhat of an uphill struggle.  Ms M has sought legal aid but her counsel, Ms Cook, was advised today that after consideration by a specialist adviser, her application will be declined. Ms Cook still needs to take time to advise her client on whether that decision should be challenged or to ascertain whether, from sources other than her own funds, Ms M can find sufficient moneys to fund an appeal, and payment of security for costs.

[5]      Mr Harte, for Mr M, submits that the points raised by Ms M are so weak that an increase in security for costs should be granted.  The standard amount is $1990[5]

for a full day, a period which in my view ought to be set aside for the appeal.  He suggests a figure of some $5000.

[5] High Court Rules, r 20.13(3) and Schedule 6, cl 4.

[6]      Ms  Cook  submits  that  the  standard  security  should  be  ordered  and  an extension of time to pay given to allow Ms Cook to challenge the legal aid decision, should she wish to do so.

[7]      On the material before me, I cannot say the appeal is hopeless. Thus, security should not be fixed at a sum so high as to shut out the prospect of any appeal being brought, in the event that the decision to refuse legal aid is not challenged or is confirmed.  Nevertheless, the merits do require an uplift.[6]

[6] A discretion to uplift and to extend the time for payment is found in r 29.13(3) and (4) of the

High Court Rules.

[8]      In granting an uplift for security for costs I intend to defer the date for payment and, consequentially, the start date for other steps to be taken to ready the appeal for hearing.  This will allow some time for the legal aid issue to be explored further. That provides a degree of counterbalance to the decision to uplift.

[9]      I make the following directions:

(a)      The hearing time is estimated to be one day.   The Registrar shall allocate a hearing on the first available date after completion of the steps required to ready the appeal for hearing.

(b)The  appeal  is  categorised  as  a  Category  2  proceeding,  for  costs purposes.

(c)       Ms M shall pay security for costs in the sum of $2500, on or before 9

November 2012.

(d)Detailed and specific points on appeal shall be filed and served no later than 10 working days after 9 November 2012.

(e)      Otherwise, standard directions for appeals, in terms of cls 7–12 of Schedule 6  shall  apply,  with  times  commencing after the date on which points on appeal are due.

[10]     I record that I have issued this decision today (rather than deferring a decision on security) because of Ms Cook’s indication that the application for legal aid has been determined adversely to Ms M.[7]

[7] High Court Rules, r 20.13(6).

[11]     Costs of the appeal are reserved.

P R Heath J

Delivered at 4.15pm on 11 October 2012