Van Der Walt v Van Der Walt

[2015] NZHC 1238

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2015-425-000012 [2015] NZHC 1238

UNDER

the Trans-Tasman Proceedings Act 2010

IN THE MATTER

of an application to register Australian
Judgment

BETWEEN

MICHELLE DOMINIQUE VAN DER WALT

Applicant

AND

ABRAHAM NICHOLAS VAN DER WALT

Respondent

Appearances:

R B Davis for Applicant (Respondent to setting aside

application)

P B Redpath for Respondent (Applicant on setting aside application)

Judgment:

4 June 2015

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

setting aside registration of Australian judgment (by consent)

Introduction

[1]       This proceeding concerns the registration of an Australian judgment.

[2]       The judgment is of the Federal Circuit Court of Australia dated 4 August

2014.

[3]       On Ms van der Walt’s application under s 56(2) Trans-Tasman Proceedings

Act 2010 (the Act) it was registered in this Court on 17 February 2015.

VAN DER WALT v VAN DER WALT [2015] NZHC 1238 [4 June 2015]

[4]      Mr van der Walt applied within the required 30 working days (s 61(3)(a) of the Act) to set aside the registration.

[5]      I was to have heard the application this week.

[6]      Counsel have by joint memorandum recorded that the parties now seek an order by consent that the registration of the Australian judgment be set aside.

[7]      I will be making the requested order by consent but it is appropriate that I

briefly record the reasons which make the setting aside appropriate.

The subject matter of the Australian judgment

[8]      The   Australian   judgment   included   an   order   of   payment   of   spousal maintenance calculated at $22,000.   Such subject matter is an excluded matter in terms of s 4(1) of the Act.  Accordingly, because the Australian judgment “wholly or partly relates to an ‘excluded matter’”, s 54(2)(a) of the Act applies, with the consequence  that  the  Australian  judgment  was  not  a  registrable  judgment.    By s 57(1) of the Act, the Registrar of this Court is able to register only registrable Australian judgments.

[9]      The setting aside application was properly brought as the Court is required by s 61 of the Act to set aside a registration if satisfied that the judgment was registered in contravention of the Act.  I am satisfied that the judgment was so registered.

[10]     Upon the making of the order which follows, this setting aside application will have accordingly run its course.

The application for registration

[11]    Ms van der Walt indicates that a fresh application will be brought for registration of the registrable portions of the Australian judgment pursuant to s 60(2) of the Act.  That is a matter to be attended to within the jurisdiction of the Registrar.

Order

[12]     I order by consent that the registration of the judgment of the Federal Circuit

Court of Australia made between the parties on 4 August 2014 be set aside.

[13]     I reserve costs.  In the event that the parties are unable to resolve costs issues, I will determine costs and disbursements on the memoranda filed (three page limit); the  respondent’s  memorandum  to  be  filed  within  10  working  days  and  the applicant’s memorandum within five working days thereafter.

Associate Judge Osborne

Solicitors:

AWS Legal, Invercargill

Eagles, Eagles & Redpath, Invercargill