ROGER JOHN PAYNE v [2003] NZCA 42 (5 March 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 233/02

BETWEEN ROGER JOHN PAYNE

Appellant

AND JEANETTE ROSSLYN PAYNE

Respondent

Hearing: 24 February 2003

Coram: Keith J

Tipping J

Anderson J

Appearances: Appellant appears in Person (with J Moss as a McKenzie Friend)

K Ertel for Respondent

Judgment: 5 March 2003

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the applications

[1]	Mr Payne applies to this Court in the following terms:

A recall of the judgments of the Court of Appeal under Justice Richardson of 14 December 2000 and under Justice Gault of 24 October 2000 now that the Family Court had heard the case on referral from the Court of Appeal, and

Leave to appeal to the Court of Appeal against the two judgments of Justice Durie delivered in the High Court on 11 April and 22 July 2002 and all preceding judgments of the Family and High Courts in this case 1996-2001.

[2]

The judgments of this Court referred to in the first of the applications were given in the course of litigation under the Matrimonial Property Act 1976.The second of the applications relates to decisions of the High Court and Family Court in that litigation.

[3]

Before embarking on the merits of the applications we responded to requests which Mr Payne had made in writing, on 12 December 2002, to the Registrar of this Court.He had urged “a requirement for a special completely independent panel that has had no previous involvement with this case”.He had also requested “a full audio and video court recording to commence at the entry of the Judges to the courtroom and to terminate after their departure for any further hearing”. On the present applications being called Mr Payne took issue with the composition of the Court and the absence of recording equipment.In respect of the first matter we informed him that we did not consider his challenge could be upheld.In respect of the second matter we informed him that the Judges would follow their normal course of taking their own notes and that others in the Court could also take their own notes.

History of the litigation

[4]	The parties were previously married.On 12 December 1995 the respondent left the matrimonial home.On 18 December 1995 she proposed that she and the appellant each instruct a valuer to value the home and that if the husband wished to purchase her share then for such purposes the value would be the mid point of the two valuations but the appellant did not wish to discuss issues of matrimonial property.On 19 February 1996 the respondent applied to the Family Court for the determination of her interest in matrimonial property and for occupation of the home until it should be sold.On 16 July 1996 the Family Court made an occupation order in favour of the respondent and an order for sale but with leave for the appellant to purchase the respondent’s share “at a price and on terms and conditions to be agreed between the parties”.On 19 July 1996, the appellant filed a valuation obtained on 11 March 1996 indicating a value of $220,000.On 22 July the respondent filed a valuation as at 15 July 1996 giving a value of $255,000.The appellant contended that each valuation reflected the value of post-separation work undertaken by him.
[5]	Disagreement on that issue led to the appellant’s appealing to the High Court against the Family Court’s orders and directions.He also applied to the Family Court for orders for stay pending disposal of the appeal.When on 22 August 1996 the matter came back before the Family Court on the stay application, the appellant advised that he was willing to purchase the respondent’s interest in the house according to the formula suggested by the respondent on 18 December 1995, but the respondent would not agree without a comprehensive settlement of all property matters.
[6]	On 27 August 1996 the Family Court granted a stay pending disposal of the appeal, conditional on the appellant paying into Court or to an agreed solicitor the sum of $118,750 being half of the average of the values.Any interest on that sum was to accrue for the benefit of the wife whether or not that was the ultimate figure the husband might pay in order to purchase a half share and whether or not the property was ultimately owned by the husband or sold to the third party.Failing agreement between the parties as to the investment of the funds by a solicitor the Registrar was directed to invest the funds in an interest bearing account.
[7]	On 29 August 1996 the appellant paid the specified sum into Court and on 23 September 1996 he appealed to the High Court against the Family Court orders of 27 August.The respondent moved to strike out what were then two appeals.This was followed by an unsuccessful settlement conference and a directions hearing before Heron J.
[8]	The dispute almost reached resolution in April 1997 but negotiations collapsed over ancillary matters.
[9]	On 10 September 1998 the respondent applied to the Family Court to recall the file from the High Court on the grounds that the appeals had not been pursued.Unsurprisingly, the Family Court rejected that application because the matter was then before the High Court.The respondent applied to the High Court to strike out the appeals should they not be brought within one month and Gendall J ordered accordingly.
[10]	On 11 November 1998 the appellant discontinued his appeals and the matter came back before the Family Court on interlocutory applications by each party.The Family Court made a direction for revaluation of the house and the appellant appealed to the High Court against that direction.
[11]	On 4 March 1999 the High Court determined it had no jurisdiction to entertain the appeals without an order from the Family Court granting leave to appeal and the appellant returned to the Family Court to seek leave.Leave was refused on 3 May 1999 and the appellant appealed to the High Court against the refusal to grant leave.
[12]	On 24 March 2000 the High Court dismissed the appeals.The appellant applied for leave to appeal to the Court of Appeal and that application was dismissed by the High Court on 12 May 2000.The appellant then applied to this Court for leave to appeal against the interlocutory orders.Leave was declined on 24 October 2000.The appellant applied to this Court for an order recalling that judgment.On 14 December 2000 the application was dismissed.The appellant next applied unsuccessfully to this Court to recall the decision of 14 December 2000.
[13]	The matter then returned to the Family Court.After further directions conferences and an unsuccessful application by the respondent for leave to appeal against a decision not to direct a revaluation, the matter ultimately came on for a substantive hearing in July 2001.
[14]	In a reserved decision delivered on 23 August 2001 the Family Court made orders in respect of two motorcars, bank accounts, insurance policies, the matrimonial home and costs.The appellant takes particular issue with some of the orders in relation to the home, and with the order for costs.
[15]	The Family Court exercised its discretion pursuant to s2(2) of the Matrimonial Property Act 1976 in fixing the value of the matrimonial home, favourably to the appellant, at a date earlier than the date of hearing.The date considered relevant by the Family Court Judge was April 1997 when negotiations between the parties reached the stage of agreement that the appellant should buy the respondent’s interest at the average of the two valuations but where overall settlement was not reached because of some ancillary concerns.The appropriate value was held to be the average of the two valuations.
[16]	The Family Court Judge held that the appellant should account to the respondent at the rate of $150 per week, being half the assessed rental value of the property, from the time of separation down to April 1997.He also ordered that from that date down to 28 July 2001 the appellant should account to the respondent for interest at the rate of 7% in respect of the respondent’s net entitlement.The interest rate was fixed by reference to the average rate for first mortgages and bank deposit interest rates.
[17]	The Family Court made further orders including the vesting in the appellant of the respondent’s interest upon payment of the amount of the respondent’s entitlement in terms of the orders, such being computed at $158,749.12, together with further interest at 7% per annum from 28 July 2001 to the date of payment.The Family Court also ordered that the funds accumulated from the payment into Court were to be paid to the respondent on account of her entitlement.Upon settlement the respondent must provide a registerable transfer of her interest in the property.
[18]	In the matter of costs the Family Court ordered the appellant to pay $9,000.The Court held that this was clearly a case where the respondent was entitled to a substantial order for costs.The Judge did not exonerate the respondent but held that the major responsibility fell on the appellant for delays attributable to complications, interlocutory applications and Court appearances.
[19]	Mr Payne then appealed to the High Court against the substantive decision.Having received submissions for a full day Durie J reserved his decision.On 11 April 2002, in a comprehensive judgment, the appeal was dismissed with costs of $10,000 and disbursements.
[20]	The appellant then applied to the High Court for leave to appeal to this Court.There was no appearance by the appellant on the date fixed for the hearing of the application, 22 July 2002, for reasons relating to Mr Payne’s involvement in the General Election.Durie J refused leave.

Arguments on the application

[21]	The appellant filed lengthy arguments, largely in the form of affirmations, and addressed the Court orally for some hours.The essential theme was that he had acquired a contractual right to the respondent’s interest in the matrimonial home and became entitled to a conveyance of that interest immediately upon the payment into Court of $118,750 on 29 August 1996; such payment was consistent with the indication his ex wife had given on 18 December 1995; and all litigation after the payment was, from his position, in vindication of that contractual entitlement and, from the respondent’s position, in defeasance of it.He submitted, in effect, that it was his ex wife’s intransigence and the successive refusals by the Family Court, High Court and this Court to recognise and uphold his rights which account for the extensive litigation.Further, in his view, the substantive decision of the Family Court is internally flawed in that it fixes him with concurrent obligations in respect of both rent and interest relating to the respondent’s share.He submitted that the orders for costs, particularly the order made in the Family Court, were unjustified and in any event excessive. Mr Payne was critical of the way in which his appeal against the substantive judgment of the Family Court was heard by the High Court, and of the way in which his application to it for leave to appeal to this Court was dealt with.He claimed that he had effectively been deprived of a hearing.He contended that in consequence of all of these matters he is the victim of prolonged, serious injustice warranting leave to appeal to this Court.
[22]	For the respondent Ms Ertel submitted to the effect that the appellant misconceived the legal nature of the payment into Court which did not and could not constitute a contract.The Family Court Judge did not double up on questions of occupation, rent and interest because the periods covered by each such order were consecutive not concurrent.There was no error of law or wrongful exercise of discretion by the Family Court Judge, still less any error justifying the trouble and expense of a further appeal to this Court from the High Court’s judgment on appeal from the Family Court.
[23]	To the extent that the appellant sought a recall of previous orders of this Court declining to recall judgments in respect of interlocutory matters there was no justification, not least for the reason that the application related to interlocutory matters of no continuing significance.

Discussion

[24]	Section 67 of the Judicature Act 1908 provides that:

The determination of the High Court on appeals from inferior Courts shall be final unless leave to appeal from the same to the Court of Appeal is given by the High Court, or where such leave is refused by that Court, then by the Court of Appeal.

[25]	It is well established that leave is not justified unless the appeal raises some question of law or fact, capable of genuine and serious argument, in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal; see Waller v Hider [1998] 1 NZLR 412, at 413.This approach reflects the essential nature of this Court’s function in relation to a second appeal.It is not mere correction of error, that being conventionally the function of the Court at the first tier of appeal.The essential function of a second tier appellate Court is to clarify the law and determine whether it has been properly interpreted and applied by the Courts below.
[26]	Having given very careful attention to all of the submissions, written and oral, we see no basis upon which leave to appeal can be justified.Without doubt the extended litigation has been a matter of severe worry and expense, not just to the appellant but also the respondent, yet such concern arises not from any significant issues of law but from the longevity and rancour of the litigation.To a large extent the litigation has been driven by the appellant’s own misunderstanding of the relevant law in relation to his payment into Court.That payment was in compliance with a Court ordered condition for the stay of execution of a previous order pending the appellant’s prosecution of an appeal and not by way of acceptance of any extant offer to sell on the part of the respondent.In any event the offer, if it were such, made by the respondent more than eight months previously, had plainly lapsed.The fundamental requirements of offer and acceptance were not mutually present.
[27]	But even if they had been, there would not have been a contract recognisable by the law because the mandatory requirements of s21 of the Matrimonial Property Act 1976, which apply to the purported agreement, were not met.There was no agreement in writing, still less one conforming to s21(6) of that Act which provides that:

The signature of each party to an agreement under this section shall-

(a)	If signed in New Zealand, be witnessed by a solicitor of the High Court of New Zealand;

or

(b)	If signed in a Commonwealth country outside New Zealand, be witnessed by a solicitor entitled to practise in that country or by a notary public; or
(c)	If signed in a country that is not a Commonwealth country, be witnessed by a notary public,-

and, in every case, the witness shall certify that before the party whose signature he has witnessed signed the agreement he has explained to that party the effect and implications of the agreement.

[28]	The appellant’s stance is simply wrong and in any event raises no question warranting a second appeal.
[29]	The same is the case in relation to the argument that there has been a double charging in respect of accommodation, rent and interest.An examination of the Family Court judgment shows that Ms Ertel’s argument on that issue is unanswerable.
[30]	The question of costs was within the discretion of the Family Court, as it has been within the discretion of all other Courts which have made costs orders in the litigation, and there is nothing to indicate that the manner of exercise of the discretions in respect of costs justifies leave in terms of the established principles.
[31]	As to the way in which the High Court dealt with the substantive appeal we can find no basis for granting leave.The decision is not of itself such as to warrant leave and we do not accept that the appellant did not, in effect, have his appeal heard.On an objectively narrow appeal he was allowed most of the hearing day to present his submissions.And the declining by the High Court of his application for leave to appeal is of limited significance because of the opportunity to seek leave from this Court.
[32]	In relation to the application for orders declining to recall previous orders we have no option but to regard it as an abuse of this Court’s process.It relates to interlocutory matters of no remaining legal relevance and is vexatious in its persistence.

Comment

[33]

We have striven to receive the appellant’s submissions with care and to dispose of them with courtesy, despite their wide ranging and intemperate criticisms.Many of the documents filed by the appellant are repetitious and gain nothing by their unbecoming tone.They are in fact amenable to orders directing their removal from the file in the exercise of the Courts’ inherent power to prevent abuse of process.

[34]

This litigation must now be recognised as at an end.

Result

[35]	For the reasons indicated in this judgment the applications are dismissed.The respondent is entitled to costs against the appellant in the sum of $4,000.

Solicitors:

Kathy Ertel & Co, Wellington for Respondent