Taylor v Taylor

[2009] NZCA 579

IN THE COURT OF APPEAL OF NEW ZEALAND

CA344/2009
[2009] NZCA 579

BETWEENLAWRENCE ALLAN TAYLOR

Applicant

ANDTHELMA NATALARAY TAYLOR

Respondent

Hearing:17 November 2009

Court:Glazebrook, Chambers and Baragwanath JJ

Counsel:B A Fletcher for Applicant

J H Rennie for Respondent

Judgment:9 December 2009 at 3.30 pm

JUDGMENT OF THE COURT

A            The application for special leave to appeal is dismissed.

B            The applicant must pay the respondent costs for a standard application for leave on a band A basis and usual disbursements. 

REASONS OF THE COURT

(Given by Chambers J)

[1]        In June 1989, Lawrence Taylor, the applicant, and Thelma Taylor, the respondent, who had married the previous year, signed a matrimonial property agreement under what was then the Matrimonial Property Act 1976.  The parties separated in December 2005.  Mrs Taylor applied to set aside the agreement.  On 24 July 2008, Judge Ullrich QC set it aside: TT v LAT FC BLE FAM‑2007‑042‑135.  Mr Taylor appealed.  Gendall J dismissed that appeal: LT v TT HC BLE CIV‑2008‑406‑208 17 March 2009 (“the appeal judgment”).  Gendall J subsequently, on 12 May 2009, refused leave to appeal.  Mr Taylor now seeks special leave (“the leave judgment”). 

[2]        Mr Fletcher, for Mr Taylor, submitted there were three important points warranting a second appeal:

“(a)Lack of understanding of party as to the effect and implications of the agreement.

(b)What in law can amount to a change in circumstances?

(c)What is the threshold to warrant a finding of serious injustice?”

[3] Gendall J considered none of these warranted a second appeal. As to (a), he observed that Mrs Taylor’s lack of understanding as to the effect and implications of the agreement, as found by Judge Ullrich and confirmed by him, was “a matter of fact ... dependent upon the Family Court Judge’s assessment of all the evidence in this case, she having had the advantage of seeing [Mrs Taylor] give evidence”: the leave judgment at [13]. We agree. No significant point of law arises; this is a question of fact which has now been considered by two courts.

[4]        As to (b), we agree with Miss Rennie, for Mrs Taylor, that it is impossible for this Court to define more precisely than Parliament has done what “changes in circumstances” means in s 21J(4)(d) of the Property (Relationships) Act 1976.  Judge Ullrich considered there had been “changes in circumstances” since the agreement was signed: at [106]‑[124].  That was part of the reasoning leading to her being satisfied that giving effect to the agreement would cause serious justice.  Gendall J considered this issue and agreed with Judge Ullrich: the appeal judgment at [30]‑[31]. 

[5]        As to (c), we agree with Gendall J that it is simply not possible for an appellate court to lay down a definitive guideline as to “the threshold to warrant a finding of serious injustice”.  The factors to be considered are set out in s 21J(4).  How those factors are to be assessed depends on the circumstances of individual cases, the evidence given, and the weighing of that evidence.  That has already been done twice in this case.  There is no warrant for a third assessment of the circumstances and facts of this case.

[6]        We are satisfied Gendall J reached the right conclusion in refusing leave to appeal.  The proposed appeal has no general significance.  Nor is it right that these parties should be put through a further round of litigation in circumstances where the entire property pool is only about $260,000.  Mr Taylor’s argument, if accepted, would mean that Mrs Taylor, now aged 65, would come out of a marriage of some 18 years’ duration with assets worth less than $10,000.  It is well past the time when this litigation should come to an end. 

[7]        We decline Mr Taylor’s application for special leave to appeal. 

Solicitors:

Gascoigne Wicks, Blenheim, for Applicant

Zindels, Nelson, for Respondent