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Smith v Jones

Smith v Jones

Case [2023] NZHC 3277 22 November 2023

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NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2023-443-31

[2023] NZHC 3277

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of an appeal against the refusal to make an order

BETWEEN

ANDREW SMITH

Appellant

AND

BELLA JONES

Respondent

Hearing: 24 October 2023

Counsel:

K L Topham and S W Rollo for Appellant

K T M Sadd-Peawini and R S P Lyttelton for Respondent and Litigation Guardian

Judgment:

22 November 2023

JUDGMENT OF GRICE J

Introduction

[1] Mr Smith (the appellant) appeals against the dismissal of a without notice application for interim orders relating to occupation and insurance of a property in the name of Ms Jones (the respondent). Mr Smith was in a relationship with Ms Jones for some years and at the same time that he filed the without notice applications, he filed substantive applications in the Family Court seeking an interest in the property.

SMITH v JONES [2023] NZHC 3277 [22 November 2023]

[2] The first interim order sought was pursuant to s 27 of the Property (Relationships) Act 1976 (the Act) for an occupation order in relation to a property registered in the name of the respondent. The second order was for an interim order under s 30(a) of the Act vesting the insurance policy for the relevant property in the appellant’s and the respondent’s joint names. The application was supported by an affidavit by Mr Smith.

[3] The Family Court Judge received the without notice applications on what is described as the “E bench” platform. He dismissed it on the papers, directing that a notice of response be filed by the respondent and granting leave to file a new application for an injunction or restraining order if the respondent took any unilateral steps.

[4] The appellant says the Judge made errors in refusing to make the interim occupancy order pursuant to s 27 of the Act, in treating the application as seeking orders under s 33 of the Act, and in determining that he could not make an ancillary order without there being orders made pursuant to s 28 of the Act. The Judge is also said to have erred in refusing to make an order under s 30(a) vesting the insurance policy in the parties’ joint names.

[5] The respondent submits that this Court has no jurisdiction to hear the appeal and, secondly, the Judge did not err in reaching his decision. In addition, the respondent submits that this Court on appeal cannot make the orders sought by the appellant in view of the lack of any evidence by the respondent before this Court.

[6] The respondent also points to the fact that the proceedings in the Family Court have now moved on and the substantive matters…

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 Smith v Jones

Details

AGLC: Smith v Jones [2023] NZHC 3277
Case: [2023] NZHC 3277
Decision Date: 22 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Grice J considered an appeal by Andrew Smith against the refusal of a without notice application for interim orders relating to the occupation and insurance of a property registered in Bella Jones’ name. The appeal was against a Family Court Judge’s decision to dismiss the without notice application and direct that a notice of response be filed by the respondent, with leave to file a new application for an injunction or restraining order if the respondent took any unilateral steps. The appellant claimed that the Judge made errors in dismissing the application and in treating it as seeking orders under a different section of the Property (Relationships) Act 1976. The respondent argued that the Court had no jurisdiction to hear the appeal and, if it did, the Judge did not err in reaching his decision.

The Court considered the jurisdictional issue first. It noted that there were conflicting authorities as to whether the appeal provision in the Act allowed an appeal from an interlocutory decision. However, the Court concluded that s 39(1)(a) of the Act provides for an appeal against the making or refusal of an interlocutory order under the Act, as the plain meaning of the Act accords with the interpretation given to it in L v L. In the alternative, the Court noted that s 124 of the District Court Act 2016 would allow a right of general appeal, as it provides for a general right of appeal against a “decision made by the District Court in or in relation to the proceeding”, other than for Acts which expressly confer a right of appeal or expressly provide that there is no right of appeal. The Court found that it had jurisdiction to hear the appeal.

On the merits of the appeal, the Court found that the Judge dealt with the application under the incorrect section and made an error in doing so. The without notice applications were not seeking ancillary orders, and therefore, the restriction on obtaining orders did not apply. The Court also found that there was insufficient material before the Judge in order to make the orders sought on a without notice basis, as it was not a situation in which delay in dealing with the application would cause the appellant irreparable damage. The Court dismissed the without notice application on its merits.

In conclusion, the Court found that the Family Court Judge made errors in his decision and dismissed the without notice application on its merits. The Court directed a copy of the judgment (the anonymised version) be provided to the Family Court and noted that any application for costs was to be made within five days of the date of this judgment.

Orders