Von Brainich-Felth-Eilander v Ward - [2019] NZHC 1029

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000008

[2019] NZHC 1029

BETWEEN
WILLEMINA BRAINICH VON BRAINICH-FELTH-EILANDER

Plaintiff

AND

RUPERT RANNIE WARD

Defendant

Hearing: 10 May 2019

Appearances:

A M Halloran for Plaintiff

S N van Bohemen for Defendant

Judgment:

10 May 2019

JUDGMENT OF JUSTICE OSBORNE

(on leave to amend pleadings)

[1] This is a consolidated set of proceedings, representing two proceedings initiated in the Family Court in 2009 and 2010 respectively for spousal maintenance and relationship property orders. (The spousal maintenance claim was subsequently withdrawn).

[2] Upon transfer to this Court at the end of 2017, directions had to be made in relation to expert evidence, the completion of factual evidence, and the close of pleadings date. This Court ordered on 23 May 2018 that the close of pleadings date would be 1 November 2018. In the same Minute, directions were made as to allocation of a trial.

[3] The trial initially allocated was to commence on 18 February 2019. Subsequent amendments of the timetable led to the allocation of a later close of pleadings date (1 February 2019) and a later trial date (27 May 2019).

VON BRAINICH-FELTH-EILANDER v WARD [2019] NZHC 1029 [10 May 2019]

[4] There was further slippage by the defendant in relation to the new timetable as a result of which, in February 2019, further time was made available to the parties for completion of evidence. The close of pleadings date (1 February 2019) was not altered. Consistently with that, the last pleading filed was the plaintiff’s statement of defence to the defendant’s counterclaim, filed on 21 December 2018.

Defendant’s interlocutory application

[5] On 30 April 2019, a little under four weeks before the hearing date, Mr van Bohemen on behalf of the defendant filed an interlocutory application for leave to file an amended statement of defence and counterclaim (after the close of pleadings date). Filed with the application were a draft amended pleading and a memorandum of Mr van Bohemen explaining the various aspects of the defendant’s proposed amendments.

[6]The application for leave is opposed by the plaintiff.

The issues in the proceeding

[7]As summarised by Mr van Bohemen, the issues in the proceeding are:

(a)the division of relationship property owned by the parties;

(b)whether or not compensatory orders should be made pursuant to ss 15, 18B and 18C of the Property (Relationships) Act 1976 (PRA); and

(c)the plaintiff’s claim under s 182 of the Family Proceedings Act 1980 (FPA) in respect of a family trust the parties established during the course of the relationship.

The proposed amendments

[8] The defendant’s proposed amendments would effectively withdraw concessions made in his existing pleadings in relation to three matters;

(a)whether rights and powers of the parties in relation to the family trust are relationship property, by reference to Clayton v Clayton and other authorities;1

(b)whether the Court is precluded from making orders in relation to or orders which take account of two properties owned in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Von Brainich-Felth-Eilander v Ward

Details

AGLC: Von Brainich-Felth-Eilander v Ward [2019] NZHC 1029
Case: [2019] NZHC 1029
Decision Date: 10 May 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Osborne delivered a judgment on an interlocutory application for leave to amend pleadings in the consolidated proceedings of Von Brainich-Felth-Eilander v Ward. The proceedings, originally initiated in the Family Court, involve claims for spousal maintenance, relationship property orders, and a claim under the Family Proceedings Act 1980 in respect of a family trust. The defendant, Rupert Rannie Ward, sought leave to amend his pleadings to withdraw concessions made in relation to the division of relationship property, jurisdiction over properties in the Netherlands, and certain assets identified in the plaintiff's Schedule B.

The court examined the defendant's application under the principles established in Elders Pastoral Ltd v Marr, considering whether the amendment was in the interests of justice, would not significantly prejudice the other party, and would not cause significant delay. The court found that while the defendant's proposed amendments raised arguable propositions and jurisdictional issues, the late application and the extensive preparations made by both parties over the years warranted a cautious approach. The court held that leave should be granted for the defendant to amend his pleadings regarding the jurisdiction over the Netherlands properties, but denied leave for amendments concerning the family trust rights and powers and the items in the plaintiff's Schedule B, as these had been consistently pleaded and contested from the outset.

In the event of an adjourned trial, the court ordered that the defendant pay $8,920 to the plaintiff for wasted costs and $3,679.50 for the costs of the interlocutory application. The court also directed the parties to confer and file a joint memorandum regarding the trial bundle. The plaintiff was given until noon, 20 May 2019, to determine whether she could proceed to trial on 27 May 2019, with further directions provided for both scenarios.

Orders