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Court of Appeal of New Zealand |
IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN CHRISTOPHER CHARLES BROWNE
Paterson J
Appearances: E J Hudson for Appellant
R A Houston QC and T R Ingram for Respondent
5. Time for appeal—
(1) Except by special leave of the Court below or by special leave of the Court of Appeal, and unless the enactment conferring the right of appeal otherwise provides, no appeal may be brought after the expiration of 28 days.
(2) An appeal by special leave of the Court below must be brought within the time fixed by the Court below.
(3) In calculating the period referred to in subclause (1), the period commencing on 20 December and ending with the close of 10 January must be disregarded.
| [3] | If time began to run from the date of sealing judgment, the appeal is within time; but if time began to run from the dates on which the Judge signed his reasons for judgment, the appeal was brought too late and could not be pursued without special leave. |
| [4] | Because the issue of time had been raised by the bench, counsel were permitted to file memoranda and an application for special leave after the substantive arguments on the appeal.Counsel for the appellant subsequently filed a memorandum and an application for special leave.Counsel for the respondent filed memoranda in opposition to the application for special leave.We think it expedient to deal with the issue of time at this point in the judgment. |
From when does time for appealing run?
| [5] | Rule 6 reads as follows: |
6. Commencement of time for appeal—
(1)If—
(a)An action is dismissed or a judgment of non-suit is pronounced; or
(b)An application is refused; or
(c)The order is one to which rule 268 of the High Court Rules applies,—
the period referred to in rule 5(1) begins when the decision appealed from is given, irrespective of whether reasons for the decision are given then or at a later date and irrespective of whether any formal steps to sign, enter, or otherwise perfect the decision are necessary or are afterwards taken.
(2) In all cases other than those referred to in subclause (1), the period referred to in rule 5(1) begins when the judgment or order is signed, entered, or otherwise perfected.
| [6] | This case falls within R6(2).But the several “interim judgments” having been signed by the Judge and a formal document described as a “judgment on trial by a Judge,” having been engrossed, signed by a Deputy Registrar and sealed with the seal of the High Court, the question arises whether the Judge’s signing is contemplated by the word ‘signed’ in R6(2) or whether the formal sealing of the judgment perfected it within the contemplation of the concluding words of that subrule. |
| [7] | Mr Hudson submitted that any interpretation of R6(2) requires consideration to be given to R267, 540, 541 and 542 of the High Court Rules which read as follows: |
267. Drawing up and sealing orders—
(1) The order made on an interlocutory application shall (except in cases referred to in rule 268) be drawn up by the party in whose favour it was made and submitted to the Registrar for approval; but, if that party fails to do so within 6 days after the day on which it was made, any other party to the application may do so.
(2) The order may be in form 22.
(3) The order shall specify both the date on which it was made and the date on which it was sealed.
(4) The order, when it is approved, shall be signed by the Registrar, sealed with the seal of the Court, and filed with the proceeding.
(5) If an order filed under subclause (4) gives directions to the Registrar or any Deputy Registrar or otherwise requires action to be taken by the Registrar or any Deputy Registrar, the party who drew up the order shall serve a duplicate of that order on the Registrar or Deputy Registrar.
540. Time and mode of giving judgment—
(1) A Judge may give a judgment orally or in writing.
(2) Except in the case of a judgment on an ex parte application, a Judge may give a judgment orally only if the affected parties or their counsel have been given a reasonable opportunity to–
(a)be present when the judgment is given; or
(b)hear the Judge give the judgment, for example, by telephone, telephone conference call, or video link.
(3) A judgment is given orally when the Judge pronounces it, with or without reasons.
(4) A written judgment is given when the judgment–
(a)is signed by the Judge; and
(b)bears a date and time that purport to be the date on which and the time at which the Judge signed the judgment.
(5) The date and time referred to in subclause (4)(b) are deemed to be the date on which and the time at which the judgment is given.
(6) A judgment, whether given orally or in writing, may be recalled by the Judge at any time before a formal record of it has been drawn up and sealed.
541. Judgments to be sealed and dated—
(1) Every judgment shall be drawn up in a form approved by the Registrar, who shall seal it with the seal of the Court.
(2) Forms 36 to 39 may be used.
(3) A judgment may be sealed–
(a)in accordance with any direction given by the Judge relating to the sealing of the judgment; or
(b)if no such direction is given, at any time after the judgment has been given.
(4) A sealed judgment must state–
(a)the date on which, in accordance with rule 540, the judgment is given; and
(b)the date on which it is sealed.
542. When judgment takes effect—
(1) Subject to rule 6 of the Court of Appeal (Civil) Rules 1997, a judgment takes effect when it is given.
(2) Despite subclause (1), no step may be taken on a judgment before it has been sealed.
(3) A party who has a judgment sealed must forthwith serve a sealed copy of the judgment on every other party who has given an address for service.
| [8] | Mr Hudson pointed out that the words “judgment or order is signed, entered or otherwise perfected” have been used in relation to the calculation of time for appeals since they appeared in R15 of the Schedule to the Court of Appeal Act 1882.Subsequent legislative adoption of the same words occurred in the Third Schedule to the Judicature Act 1908 (R19) and the Court of Appeal Rules 1955 (R28). |
| [9] | Counsel also noted that R541 of the High Court Rules, previously referred to, replaced R306 of the Code of Civil Procedure which required every judgment to be entered by the proper officer in a book to be kept for that purpose and sealed with the seal of the Court.In counsel’s submission there is no longer any provision for the entry of a judgment.That submission is supported by commentaries on Court of Appeal R6 in both McGechan on Procedure and in Sim’s Court Practice.The former work observes that it is unclear why archaic wording is perpetuated by R6, that the references to “sign, enter, or otherwise perfect” are obsolete, having been subsumed under the one uniform term of “sealing” described in the High Court Rules and that the period begins after sealing.Sim’s Court Practice comments that time runs from when the judgment is sealed. |
| [10] | Turning to the case law, we observe that Petersen v Petersen [1981] 1 NZLR 35, 39 accepted without discussion that in terms of R28(b) of the Court of Appeal Rules 1955, time commences upon the sealing of the order. |
| [11] | In White v New Zealand Stock Exchange, this Court considered the issue whether, in the case of a judgment of the High Court in favour of a defendant, time ran from the delivery of the judgment or the sealing of it.This Court, by a majority, determined that time began running upon delivery, essentially because the judgment for the defendant was the dismissal of an action in terms of R6(1)(a) and also because it had been the consistent interpretation and practice of this Court for a century to measure the time for appeal from the date of pronouncement of judgment for a defendant.Thomas J, who dissented on the issue before the Court observed, obiter, at 606 para 17: |
There is no question that, where judgment is for the plaintiff, time begins to run from the date when the judgment is sealed.
| [12] | In drawing together these various authorities Mr Hudson submitted that in this case, where judgment had been given for the plaintiff, time ran from the point of sealing. |
| [13] | Mr Houston QC submitted to the contrary.He argued that it is clear that under R540(4) and (5), a signed and dated written judgment is given as at the date and time purporting to be the date and time at which the Judge signed the judgment.The deeming provision in sub-rule (5) must have some practical scope and application and pursuant to R542(1), a judgment takes effect when it is given, as set out in R540.In contrast to an oral judgment, a signed written judgment requires nothing to perfect it.Rule 542(1) is expressed to be subject to R6 of the Court of Appeal (Civil) Rules 1997 and the effect of this must be to harmonise the Court of Appeal (Civil) Rules with the High Court Rules.The rights of the parties are fixed and declared in accordance with a signed judgment, such taking effect on signature and all the rights of the parties, including rights of appeal thereupon, take effect immediately. |
| [14] | In Mr Houston’s submission the alternative construction as contended for by the appellant produces an anomaly.Under R542(1), judgment takes effect when it is given, but on the appellant’s construction, the judgment does not take effect for appeal purposes until it is sealed.He also submitted that the purpose of R6(2) is, in effect, coloured by R6(1).Finally, the plain English meaning of the words, including “signed” should be adopted.Not to do so consigns the word “signed” to oblivion. |
Discussion as to time for appealing
| [15] | Perpetuation of the archaism “signed, entered, or otherwise perfected” fosters a confusion which could be avoided if it were substituted by the word “sealed”.The scope for confusion is expanded by the interchangeability, in the High Court Rules, of the meaning of the word “judgment”.In R540 and 542(1), for example, it is used in the sense of the giving of reasons for judgment, whether orally or in writing.On the other hand, in R541 the term is used in the sense of the document which is engrossed in terms of the reasons for judgment and sealed by the Registrar.This is notwithstanding that R539 seeks to distinguish “judgment” and “reasons for judgment”. |
| [16] | We think that in all cases to which Rule 6(2) applies a judgment is not perfected until it is sealed. Rule 540(6) empowers a Judge to recall a judgment whether given orally or in writing at any time before a formal record of it has been drawn up and sealed.The reference to “formal record” and the sealing of it connotes a process of perfecting.Conversely, a judgment could not be considered perfected whilst it is amenable to being recalled.It may take effect when it is given, as R542(1) provides, but the amenability to recall makes its effect potentially ephemeral. |
| [17] | Further, R542(2) provides that despite subclause (1), no step may be taken on a judgment before it has been sealed.In our view an appeal against a judgment is a step taken on it.Finally, the historical practice and understanding of the profession has been that time runs from sealing, hence the commentaries in the standard texts on procedure previously referred to. |
| [18] | For these reasons we determine that the appeal was commenced within time.Even if it had not been, reliance by Mr Hudson on longstanding practice and textbook authority would have justified the granting of special leave.It is with respect that we observe that such learned counsel as New Zealand’s most senior practising silk, Mr Houston QC, was not prompted to take issue over time until the bench raised the matter. |
| [19] | We turn now to the merits of the appeal itself. |
The High Court proceedings and background
| [20] | The general background to this litigation is succinctly described in the learned trial Judge’s first judgment in the following terms. |
[2]The parties had been sweethearts before they became married to other persons.In early 1990 the plaintiff was in the last stages of settling her matrimonial affairs with her husband.Quite by chance she met the defendant who was unhappily married for the second time.Their earlier attraction for each other was rekindled spontaneously and led immediately to what was clearly an exciting and satisfying romantic association for both.
[3]The plaintiff was, at this time, living in Auckland in the matrimonial home which still had to be sold in order to provide her husband with monies due to him.She had a small income from a variety of sources.
[4]The defendant was a successful quarry manager and businessman living on a small farmlet near Te Kuiti.
[5]Whilst the plaintiff’s matrimonial position was quite clear, apart from having to deal with the final obligations under her matrimonial settlement, the defendant’s was not.He was still married, albeit unhappily, with two young daughters.He had three older children by his first marriage.By 2 February 1993 he had signed a matrimonial property agreement and by November 1993 he was divorced.
[6]In the intervening period the parties had spent a considerable amount of time together, to the extent that by late 1992 they agreed that the plaintiff would sell her home in Auckland and come to live with the defendant in Te Kuiti. Prior to this time the defendant’s son had boarded with her in Auckland and she had assisted the defendant in caring for his young daughters when he was exercising his access rights to them.
[7]The parties made arrangements in relation to their property.The extent to which those arrangements could be said to be the subject of clear agreement is, to say the least, problematical.
[8]The plaintiff contends there was a clear agreement between them to marry and for each of them to share all their possessions with the other.To this end, and after her Auckland property was finally settled on 27 November 1992, she paid to the defendant two sums –
| • | $445,336 on 6 February 1993 |
| • | $45,556 on 18 February 1993 |
[9]In addition she contributed her income towards household expenses.In all, over the relevant period, she claims to have spent $252,722.32 directly or indirectly for the benefit of the defendant.
[10]The defendant, on the other hand, acknowledges the first payment effectively secured a quarter interest in his farmlet for the plaintiff, but the other was simply a loan to his business in respect of which she is now entitled to interest.He acknowledges that income was to be shared and any residue now forming part of any deposit accounts is to be shared equally.
[11]Unfortunately the renewed association did not last.The defendant did not accept there had been an unequivocal agreement to marry, nor was there to be a simple equal sharing of assets.As to the marriage, his view was there had been a real hope, and even prospect, of there being a marriage, but he, given his “track record”, required time to enable them both to be sure that marriage was indeed in their best interests.
| [21] | The parties lived together for four years until the end of 1996 and by the time of trial in August 2001 the respondent was still living in the farmlet pursuant to an occupation order made in November 1997. |
| [22] | In her pleadings the respondent sought an order vesting in her one-half of the appellant’s assets and orders determining the future of the dwelling, relying on the Domestic Actions Act 1975 and on equity in its various expositions of the basis for awards in the case of de facto marriages, before the enactment of the Property (Relationships) Amendment Act 2001.The Judge found it unnecessary to adjudicate upon the cause of action based on the Domestic Actions Act 1975 and no issue is taken with that by either party on this appeal. |
| [23] | The Judge determined that, apart from an acknowledged interest in business income, the respondent acquired no proprietary interest in the appellant’s business to which she had contributed $45,556 on 18 February 1993.That payment was always intended to be a loan and was accountable to her as such.Some of the business income remained unspent in bank accounts and as the trial Judge noted in para [10] of his judgment, the respondent acknowledged that income was to be shared and any residue now forming part of any deposit accounts was to be shared equally.After making allowance for certain post-separation withdrawals by the respondent the total available for distribution was $26,725.60.Notwithstanding the concessions made by the appellant in his counsel’s opening and closing submissions at trial that income was to be shared, the appellant now contends that the amount for distribution should be reduced by the opening balance, at the commencement of the de facto relationship, of $8,429.94.On that approach the amount for distribution would be $18,295.66 of which $9,147.83 would be due to the respondent. |
| [24] | The Judge vested in the respondent an interest in a Nissan Sentra car and declined to accord her any interest in a BMW car in the possession of the appellant.The findings in respect of the cars, as in the case of the business assets, are not in dispute on this appeal. |
| [25] | Principally in issue, as far as the appellant is concerned, is the way the Judge dealt with the farmlet in awarding a 45% interest in it to the respondent.After reviewing the evidence and noting essential principles elucidated in Gormack v Scott (1995) 13 FRNZ 43, 47, Lankow v Rose (1995) 1 NZLR 277, 295 and of course Gillies v Keogh [1989] 2 NZLR at 327,the Judge held: |
In my view by applying these principles to the present case a proper result should be that the plaintiff is entitled to a 45% interest in the farmlet.This is based on the payment of $45,336 on 6 February 1993 plus an allowance for further cash contributions before and after that date, and a recognition of the work done by the plaintiff to improve the property and its surrounds.It also recognises her personal sacrifice in selling her own home which, in turn, enabled her to make the direct financial contribution of $45,336 on 6 February 1993.
| [26] | The respondent had alleged contribution to the farm, in the context of the relationship, by way of the $45,336 paid on 1 February 1993, general living costs including groceries and monies expended in supporting the appellant’s children, contributions by way of furnishings and work of a landscaping or gardening nature.The trial Judge had difficulty in reconciling alleged cash contributions significantly in excess of the respondent’s capital or income resources.He held, however, that the respondent was involved in a considerable sacrifice in that she sold her own home, the proceeds of her own matrimonial property settlement, for $1,000 less than government value and having departed Auckland in order to live with the appellant she had left her friends and church behind.In order to continue her employment she had to commute regularly between Te Kuiti and Auckland.She had also provided a great deal of support to the appellant in connection with his children. |
| [27] | In calculating the value of the respondent’s monetary contribution he compared the cash investment with a farm value at the time fixed by him as $142,000.On that approach the cash contribution was almost 32% and the apprehension of contribution by way of personal sacrifice in the respects mentioned justified, in the Judge’s view, an overall interest of 45%. |
Submissions for the appellant
| [28] | The case for the appellant rested on four principal arguments.First, that in taking as the value of the farm the sum of $142,000 for the purpose of assessing the percentage value of the cash contribution of $45,366, the Judge mistook value for equity.The preponderance of evidence indicated an actual value of more than $182,500, that being the value in the books of the business (subject to a bank loan of almost $50,000) for the year ending 31 March 1992.That had been its purchase price in 1989.The value accepted by the appellant and his second wife for the purposes of their matrimonial property settlement was $190,000.There was also before the Court a valuation at $180,000.The correct percentage value of the respondent’s cash contribution was therefore 25.18% and not the 31.92% reached by the Judge in confusing value with equity. |
| [29] | Next, counsel submitted on behalf of the appellant that the Judge erred in taking into account for the purpose of contribution by the respondent payments allegedly made prior to 6 March 1993 the sum of which, according to the respondent, was $9,251.77.The Judge himself regarded the respondent’s evidence of expenditure including the purport of her schedules as unreliable.And in any event in the period prior to 6 February 1993 the respondent could not have held any reasonable expectation that by so contributing she would acquire an interest in the property.The farmlet was in the joint names of the appellant and his second wife and there was no certainty until the matrimonial property agreement was executed on 2 February 1993 that the farmlet would be retained by the appellant. |
| [30] | Counsel also submitted that the Judge was wrong in law in determining an interest greater than one-quarter because the appellant had declined to share, thereby negating the possibility of any reasonable expectation on the part of the respondent.He relied on Gillies v Keogh and on Hopkins v Sturgess [1988] NZHC 712; (1988) 4 FRNZ 639, 646 as expository of the principle.Evidential reliance was placed on a will executed by the appellant on 5 October 1992 in which the whole of his estate was left to the children of his first marriage, a fact of which the respondent was aware.The respondent acknowledged in cross-examination that the appellant had declined to recognise more than a one-quarter share for her.In light of the evidence, in counsel’s submission, the Judge had disregarded established legal principle. |
| [31] | But even if that were not the case the valuation of contributions at 45% was wrong. |
| [32] | The appellant accepts that the respondent contributed indirectly with the work carried out by herein establishing and maintaining gardens but the value of such work could not account for the whole of the increase in value of the farmlet attributable to work and improvements.The evidence indicated that between March 1990 and December 1996 the property had increased in value by about $105,000, of which $88,000 would be attributable to inflation and $17,000 to work and improvements.The appellant himself contributed significantly both in terms of work on the grounds, farmland and exterior of the dwelling, landscaping and the laying of carpet and vinyl.In counsel’s submission the respective contributions broadly cancel each other out. |
| [33] | Furthermore, as indicated in Gillies v Keogh at 334, the broadly measurable contributions of a claimant must be compared with the value of broadly measurable benefits received.In this case, even if contributions essentially to the relationship could be considered contributions to assets, no regard was had by the Judge to the benefits received by the respondent.The appellant had a significant salary and the account into which it was paid increased by some $30,000 during the course of the relationship and was available for the benefit of the parties.The appellant met substantial travel expenses for overseas trips, bought gifts and made payments for recurring expenses. |
| [34] | As to the bank accounts, counsel submitted that although the appellant always accepted that monies accumulated during the course of the relationship were for the parties joint benefit it would nevertheless be unjust for him to receive no credit for the opening balance. |
Respondent’s submissions
| [35] | Counsel for the respondent submitted that the starting point was the 25.18% share in the farmlet conceded by the appellant at trial.The other contributions by the respondent more than justified the 19.82% award to her over and above 25.18% which she had purchased. The appeal was against findings of fact and the exercise of judicial discretion after a trial which was lengthy for its type, running into a second week of hearing.In any event, the discretionary assessment of a 45% interest was justifiable and in accordance with established principles.In particular, contributions other than money could be taken into account.The Judge’s determination of the value of the farmlet as $142,000 was open to him on the facts, and in any event the 45% was significantly reduced by other orders made by the Judge.The appellant could not resile from concessions made repeatedly in the course of trial in relation to the bank accounts.The appeal, being by way of rehearing in 2002, should reflect prevailing social attitudes and principles relating to property division of de facto partners as exemplified by the Property (Relationships) Act 1976 as amended by the Property (Relationships) Amendment Act 2001. |
| [36] | Finally, although counsel put this near the forefront of his submissions, it was argued that the appeal was pre-empted by the parties, including the appellant, having consented to an order that he purchase the respondent’s interest based on a value of $290,000.That occurred in the following circumstances.In his judgment of 3 October 2001, Laurenson J reserved issues relating to occupancy and sale. At that time the respondent was occupying the farmlet pursuant to an occupation order as previously mentioned and the terms of the order were that it should remain in force until the High Court proceeding had been heard and determined.The relief sought by the respondent in the High Court included injunctive relief granting her sole occupancy or, alternatively, an order directing sale pursuant to s140 of the Property Law Act 1952. |
| [37] | The parties subsequently filed, in respect of the matters reserved, memoranda which indicated differences of opinion as to occupancy and valuation but mutually acknowledging as a fall-back position that the property should be sold by public auction.After reviewing the position the Judge directed sale by public auction pursuant to s140(2) of the Property Law Act 1952, such auction to be on 30 April with settlement on 31 May and with a reserve price of $279,000.An independent solicitor was appointed to act as the vendor’s solicitor on the sale and orders were made in respect of auctioneers and advertising costs. |
| [38] | The parties subsequently agreed that the appellant would purchase the respondent’s interest on the basis of 45% of an agreed value of $290,000.They again reverted to the Judge who, in his third interim judgment noted, amongst other things: |
[2]Following the date of my previous interim decision the parties have agreed that the property in dispute is not to be sold by auction.Accordingly there will be orders by consent:
[a]That the order contained in paragraph 7 of my interim decision of 20 December 2001 be recalled; and
[b]That the defendant purchase the plaintiff’s 45 per cent interest in the property based upon a value of $290,000, settlement and possession to be effected on 31 May 2001.
| [39] | The Judge was again troubled by disagreements later in February 2002, and in his fourth judgment he dealt with and disposed of matters relating to the bank accounts, maintenance and costs. |
| [40] | On 10 May 2002 judgment, incorporating the consent order, was sealed.On 28 May the appellant notified the respondent that he refused to settle in full on 31 May 2002 and gave notice of his intention to appeal. |
Discussion
| [41] | The cogency of the respondent’s case in respect of the consent order is such that we feel able to deal with the other arguments more briefly than would otherwise be the case. |
| [42] | The appellant’s argument in relation to an adjustment of the bank accounts is untenable.In his fourth interim judgment Laurenson J recorded that counsel for the appellant admitted in both his opening and closing submissions at trial that: |
The plaintiff should share equally with him in his personal savings and cheque accounts, subject to withdrawals already made.
There is no dispute that the balance of the cheque and savings account were, by agreement, to be for the benefit of the plaintiff and the defendant.
| [43] | The only qualification, and one to which the trial Judge gave effect, was that the Court should have regard to withdrawals made by the respondent following the ending of the relationship and that these must be on account of any share which she might have in property. |
| [44] | Having deliberately chosen to conduct his case on one basis, maintained that position throughout a hearing which extended for more than a week, obtained the benefit of orders in terms of his submissions thereon, it is simply not open to the appellant to renege on appeal.Apart from our concern that this Court should be troubled with arguments over relatively small sums and involving no issues of general importance we are not prepared to countenance his vacillation |
| [45] | In relation to the appropriate value for the farmlet against which the cash contribution of the respondent should be assessed, we think that for some reason the Judge has erred in adopting the figure of $142,000, which more likely represents the equity in the farmlet than its value.In some cases it may be entirely appropriate to compare cash contribution with equity, particularly if a debt against property has been subsequently reduced by joint contributions.That is not the case here.The appropriate comparators were value of cash contribution and value of asset.In his judgment Laurenson J noted valuations at $155,000 and $180,000 but recorded that the evidence relating to the appellant’s matrimonial property settlement indicated a value of $140,000.Where we think the Judge fell into error was in failing to take into account that the equity value could well be relevant to the matrimonial property settlement but was not necessarily indicative of the appropriate value in relation to the determination of the respondent’s share, initially. |
| [46] | We also think, with respect, that the Judge erred in his perception as a relevant contribution the sale by the respondent of her own home and the implications of her leaving Northcote to live in Te Kuiti.The evidence shows that the Northcote residence was sold by the respondent because she was going to live with the appellant and found it expedient to sell.The transaction was settled in November 1992 and within a few weeks the respondent had moved in with the appellant.It was not anticipated that she would sell in order to contribute to the farmlet and indeed that property remained undivided matrimonial property until the appellant and his second wife entered into a matrimonial property agreement in February the following year. |
| [47] | To the extent that, understandably, leaving behind friends and church was a sacrifice by the respondent, it must be regarded as a sacrifice in favour of the mutually desired benefits of living together.In the particular case any contributions arose by virtue of the relationship and not by virtue of the lifestyle which it supplanted. |
| [48] | But we do not accept the submissions on behalf of the appellant that the respondent had no reasonable expectation of sharing and the converse, that beyond 25% the appellant had specifically declined to share.For much of the relationship each party contributed money, work, family care and mutual affection in circumstances of domesticity against which the appellant’s later assertions in the nature of parallel and unshared private interests cannot stand.We take nothing of significance from the terms of the appellant’s will entered into about the time he completed his matrimonial property settlement with his second wife.The relationship with the respondent was at a fairly early stage but had some reasonable likelihood of being translated into marriage.We do not take the will to reflect an agreement between the appellant and respondent to the effect that nothing was hers nor ever could be.The equities which found proprietorial interests in this area of human affairs have cognisance of the real nature of human relationships where people set out, on at least an indefinite basis to share their lives.The proprietorial interests shift in nature and value as the relationship develops and the present case is no exception. |
| [49] | We do, however, agree that a 45% share in the farmlet is unjustifiable.Clearly the Judge reached that figure on a wrong valuation and on an erroneous assessment of the significance of the sale of the Northcote residence and the consequences of resettlement. |
| [50] | In the course of his oral submissions counsel for the appellant suggested to the Court that a 30% share would have been enough to reflect the interest the respondent had acquired.We think that is inadequate.The learned trial Judge had an extended opportunity to assess the parties and we would not depreciate the advantage of a Judge at first instance in relating the evident characteristics of the parties to the evaluation of contribution.We think a 35% share of the farmlet could adequately reflect the respondent’s interest.But our assessment will remain hypothetical because of the matters which follow. |
The significance of the agreement and the consent orders
| [51] | In February 1992 the respondent had the benefit of a judgment of the High Court fixing her share in disputed property at 45% of its value and directing that the property be sold at auction in order to determine current value and permit payment out, subject to accounting in respect of other aspects of the judgment.Then the appellant negotiated with the respondent for the relinquishment of the benefit of the order, which left the determination of value of the forces of the market in consideration for buying her interest, on the basis of a fixed percentage and a fixed price.The fixed percentage was the 45% which the High Court had already assessed and the fixed price was $290,000.There was no reservation or condition that the basis for payment, namely 45% of $290,000 was subject to adjustment depending on the outcome of any appeal which might be filed. |
| [52] | On 11 February 2002 appellant, by his counsel, informed the Court and opposing counsel in the following terms: |
Counsel brings to the attention of the Court the agreement between the parties that the defendant will acquire the Plaintiff’s interest in the farmlet as determined by the Court, based upon the present farmlet value of $290,000, with settlement and vacant possession to be given on 31 May 2002.It is submitted that the earlier orders for auction ought properly be recalled and substituted by the above.
It is the Defendant’s desire that outstanding issues be determined by the Court so that there is finality and an order can be sealed capable of enforcement by both parties.
| [53] | The following day counsel for the respondent informed in a memorandum: |
The Defendant has now offered to purchase the Plaintiff’s share in the property based upon a sale and purchase price of $290,000.Defendant’s paragraph 5.4 of his memorandum under reply.An order by consent is sought accordingly.Settlement and possession on 31 May 2002.
| [54] | Counsel appeared before the Judge on 14 February 2002 to support the memoranda with oral submissions and the orders by consent, previously recorded were made. |
| [55] | We feel bound to disparage the appellant’s unreliability both in relation to the question of the bank accounts and in relation to the matter presently under discussion.In each case the appellant has deemed it appropriate to instruct his counsel to inform the High Court and respondent’s learned counsel that certain material matters are conceded or have been agreed upon in the interests of finality and has later sought to resile from the position he took. |
| [56] | With respect to what happened in February 2002 we have before us clear documentary evidence showing that the appellant agreed, unconditionally, to buy the respondent’s beneficial interest in the farmlet for 45% of $290,000.We have not the slightest doubt that if he had expressed a reservation relating to appeal the respondent’s counsel would have advised her against relinquishing the benefit of the judgment in her favour and in all probability she would have accepted his sage recommendation. |
| [57] | Even though the appellant was bound by his agreement he was not prepared to settle the transaction in full on 31 May, preferring to withhold a substantial sum, apparently even more than the amount by which he claims the trial Judge has erred, as hostage to his appeal. |
| [58] | The agreement must be dispositive of the dispute in relation to the farmlet.The respondent bought the interest on a specific basis and cannot now be heard to claim appellate relief as if the respondent still had a beneficial interest in the farmlet.Further, on an objective assessment, the parties intended to compromise the litigation, without reservation, and obtained a consent order in terms of the compromise.We think it perfectly plain that at law he cannot succeed.Bearing in mind that the cause of action decided in the respondent’s favour in the High Court was founded in equity, we think that equity also could not countenance allowing the appeal and it is dismissed accordingly.The respondent is entitled to costs in this Court in the sum of $7,500, together with disbursements, including the reasonable travelling and accommodation costs of counsel. |
Solicitors:
Edmonds Judd, Te Awamutu for Appellant
Evans Bailey Fletcher Gibson, Hamilton for Respondent
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URL: http://www.nzlii.org/nz/cases/NZCA/2003/30.html