VAB v ACRB HC New Plymouth CIV 2009-443-321

[2010] NZHC 210

IN THE HIGH COURT OF NEW ZEALAND

NEW PLYMOUTH REGISTRY

CIV-2008-443-000321

IN THE MATTER OF     The Property (Relationships) Act 1976

AND

IN THE MATTER OF     An Application for Orders

BETWEEN  VAB Appellant

ANDACRB Respondent

Hearing:         24 February 2010 (Heard at Wellington)

Appearances:  P J Radich and L P Radich for Appellant

R C Laurenson for Respondent

Judgment:      2 March 2010 at 10.45am

I direct the Registrar to endorse this judgment with a delivery time of 10.45am on the

2nd  day of March 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This is an application for leave to appeal to the Court of Appeal against two

judgments,  an  interim  judgment  delivered  on  21 May 2009  and  a  final  judgment delivered on 11 December 2009, on an appeal from a decision of the Family Court. Leave is required under s 67 of the Judicature Act 1908.

[2]      The test to be applied is the well established test in Waller v Hider [1998] 1

NZLR 412 (CA) and Snee v Snee [2000] NZFLR 120.  The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving

VAB V ACRB HC NWP CIV-2008-443-000321  2 March 2010

some  interest,  public  or  private,  of  sufficient  importance  to  outweigh  the  cost  and delay of the further appeal.

[3]           Both    parties    made    comprehensive    submissions    on    the    application. Mr Laurenson  submits  that  the  case  involves  a  complicated  and  unusual  set  of circumstances,  in  that  it  was  concerned  with  the  application  of  the  Property (Relationships) Act 1976 to rights acquired by litigation concerning the respondent’s entitlement under his father’s will and under trusts established by the respondent’s family.   Mr Laurenson submits that the way in  which the litigation has progressed has meant that some significant issues have been addressed for the first time in this Court and have been crystallised only in the final judgment so that in some respects this Court has in effect been the Court of first instance.

[4]      Mr Radich opposes the application. He submits that the intended appellant has not framed the questions of principle he wishes the Court of Appeal to determine and has only identified issues which he seeks to have re-litigated. He submits that the  intended  appellant  has  not  identified  a  misapplication  of  legal  principle  or  an error  of  fact  so  material  that  the  outcome  has  been  substantially  and  adversely affected. He  submits  that  the  interests  of  finality  in  this  long  running  litigation weigh against the granting of leave.

[5]      I have reached the view that the case is one where leave to appeal ought to be granted.       In  paragraph  [19]  of  the  interim  judgment  I  said: “I  consider  that  the resolution of this case involves the application of well settled principles to the quite unusual  facts.” Whether  the  principles  have  been  correctly  applied  is  a  question which  may  potentially  be  the  subject  of  appeal. It  involves  questions  capable  of bona  fide  and  serious  argument. The  unusual  nature  of  the  facts  means  that  the issues  are  not  settled  by previous  authority and  to  that  extent  are  of  some  general importance. The  amount  involved  is  such  that  the  matter  is  of  considerable significance to the parties.

[6]      Because I am granting leave to appeal, I do not consider that it is appropriate

for me to discuss in more detail the submissions made to me on the specific points which will be argued on appeal.

[7]      Leave to appeal is accordingly granted.

“A D MacKenzie J”

Solicitors:            Radich Law, Blenheim for Appellant

Billings, New Plymouth for Respondent