Townshend v Bellamy

[2004] NZCA 151

IN THE COURT OF APPEAL OF NEW ZEALAND

CA89/04

BETWEENLEWIS HERBERT EDWARD TOWNSHEND

Applicant

ANDHEATHER MARIA BELLAMY

Respondent

Hearing:19 July 2004

Coram:Anderson P
Glazebrook J
Hammond J

Appearances:  G J Thomas for Applicant

S J Ross for Respondent

Judgment:19 July 2004 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1]       This is an application for special leave to appeal from a decision of the High Court (Miller J) in respect of an appeal from the Family Court.  The parties separated and entered into a comprehensive agreement which dealt with matters of property and of maintenance.  Mrs Bellamy subsequently married and her former husband Mr Townshend applied pursuant to s182(2) of the Family Proceedings Act 1980 for variation of a maintenance agreement. 

[2]       The parties and their learned counsel, to whom we are indebted for their careful submissions, accept that there is a question of law raised by the decisions in the courts below.  That question may be articulated in the following terms:

Whether an agreement for maintenance entered into in the light of or in consideration of the terms of a related agreement for property, under the Property Relationships Act 1976, is amenable, as a matter of jurisdiction, to variation pursuant to s182(2) of the Family Proceedings Act 1976.

[3]       It is submitted on behalf of the applicant, and we accept, that this is an important question of general and widespread potential application which should be determined by this Court and special leave will be granted accordingly.  Both parties are anxious to have this matter resolved without undue further litigation and accordingly counsel will be inviting this Court to deal with the matter substantively in the event that the question should be answered in favour of the applicant.  Such contingency would require this Court not merely to consider the discretionary aspects applicable to an application for variation of maintenance but also those considerations which attend the variation or attempted variation of a property agreement under the Property (Relationships) Act 1976. 

[4]       Special leave to appeal granted accordingly, with costs reserved. 

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Applicant
Cameron Ross, Wanganui for Respondent