Taylor v Suwanpipat

[2016] NZHC 2267

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001748 [2016] NZHC 2267

IN THE MATTER OF

An appeal under s 174(1AA)(a) Family

Proceedings Act 1980

BETWEEN

WARWICK KEITH TAYLOR Appellant

AND

WANTANA SUWANPIPAT Respondent

Hearing:	21 September 2016
Appearances:	J I Hawker for Appellant M J McCartney for Respondent
Judgment:	23 September 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 23 September 2016 at 4.45 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………..

TAYLOR v SUWANPIPAT [2016] NZHC 2267 [23 September 2016]

[1]      In July 2016 Judge Fleming made final spousal maintenance orders in favour of Ms Suwanpipat. They required Mr Taylor to pay ongoing spousal maintenance totalling  $8,000  per  month  and  a  lump  sum  of  $47,777  for  past  maintenance.1

Mr Taylor has appealed the judgment.  The appeal is to be heard on 29 Nov 2016. Mr Taylor has applied for a stay in relation to the lump sum payment pending determination of the appeal.

[2]      The principles governing an application are well established.  The decision is a discretionary one for this Court and the factors generally regarded as relevant being:2

(a)       Whether the appeal will be rendered nugatory if a stay is not granted; (b)     The bona fides of the applicant as to the prosecution of the appeal;

(c)       Whether the successful party will be injuriously affected by the stay; (d)      The effect on third parties;

(e)       The novelty and importance of the question involved in the appeal; (f)         The public interest of the proceedings;

(g)      The overall balance of convenience.

[3]      The circumstances leading up to the application are these.  Ms Suwanpipat and Mr Taylor were in a de facto relationship for 11 years before separating. They reconciled  but  later separated  permanently.   There  exact  length  of the  de  facto relationship is in dispute but, on any view, it was a long relationship.  They have a child, who is now 18.  Mr Taylor has had a very successful property business.  Ms Suwanpipat has not worked outside the home. Because of her age and skill-set it

seems unlikely that she will be able to earn a significant income in the future.

1      Suwanpipat v Taylor [2016] NZFC 3732.

2      Dymocks Franchise Systems (NSW) Pty Ltd v Bigola Enterprises Ltd [2004] NZLR 21.

[4]      The ongoing spousal maintenance covers Ms Suwanpipat’s day-to-day living expenses and contributes to her legal costs (in addition to the forthcoming appeal there are relationship property proceedings on foot). But these payments do not cover Ms Suwanpipat’s other substantial needs. She has filed an affidavit (which is unchallenged) detailing her indebtedness to friends and family ($15,000) and to her legal advisers ($170,000 which is attracting interest), the need to move out of sub- standard accommodation she presently rents and overdue dental work.

[5]      Although Mr Taylor is personally liable for the ongoing and past maintenance the payments of ongoing maintenance made to date have been advanced to him by the trustees of a family trust of which Ms Suwanpipat is a discretionary beneficiary (but Mr Taylor is not). The assets of the trust are said to exceed $30m. The trustees have apparently indicated that they would consider requests for payment of such things as dental work but, of course, there is no assurance as to what payments would be made.

[6]      Mr Taylor does not assert that having to pay the lump sum payment would cause any financial hardship.   He says, however, that if he is required to pay the lump sum for past maintenance his appeal will, to that extent, be rendered nugatory because there is no realistic prospect of Ms Suwanpipat being able to repay the amount. But Ms McCartney, for Ms Suwanpipat, argued that Ms Suwanpipat  is entitled to (and obviously needs) the fruits of the judgment. She submitted, further, that if Mr Taylor were to succeed on appeal any amount that falls to be repaid in relation to the lump sum could be recognised through an adjustment in the division of relationship property.

[7]      I acknowledge Ms Hawker’s submission that, on Mr Taylor’s view, Ms Suwanpipat has no entitlement to any property as relationship property. However, looking at the circumstances overall I find that Mr Taylor is unlikely to sustain any prejudice in the long-run (particularly since he seems not to be funding these payments himself) whereas Ms Suwanpipat is being seriously prejudiced by not having access to her judgment. Moreover, the substantial indebtedness to her lawyers is  accruing  interest,  which  is  making  her  position  progressively  worse.  The indication  by  trustee  to  meet  one-off  urgent  needs  such  as  dental  work  is  no

substitute for Ms Suwanpipat receiving payment of her judgment debt as of right. I

am satisfied that the balance of convenience favours Ms Suwanpipat.

[8]      The application for stay is refused.

P Courtney J