Payne v Payne [2005] NZCA 12; (2005) 17 PRNZ 518 (17 February 2005)

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Payne v Payne [2005] NZCA 12 (17 February 2005); (2005) 17 PRNZ 518

Last Updated: 20 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA239/04

BETWEEN ROGER JOHN PAYNE
Applicant

AND JEANETTE ROSSLYN PAYNE
Respondent

Hearing: 14 February 2005

Court: McGrath, William Young and O'Regan JJ

Counsel: R J Payne in person
K Ertel and E M Cleary for Respondent

Judgment: 17 February 2005

JUDGMENT OF THE COURT

The application for a stay of the orders made by the High Court on 7 September 2004 is dismissed. The interim stay order made by the High Court on 3 February 2005 will continue in effect until 12 noon on 3 March 2005 and will then expire.

REASONS

[1] The applicant, Mr Payne, seeks a stay of the order made by Ellen France J, in a judgment delivered in the High Court on 7 September 2004, for the sale of a property at 35 Woodhouse Avenue, Karori, Wellington, of which the applicant and the respondent, Ms Payne, are registered proprietors.
[2] The terms of the order made in the High Court are:

Orders are made to enforce the Family Court’s order for sale. The sale of 35 Woodhouse Avenue, Karori, Wellington, is to be conducted by the Registrar of this Court, who shall have power to sign the documentation necessary for sale. Sale is to be conducted on the open market. The proceeds of sale (after the deduction of any expenses associated with the sale) are to be applied first to Ms Payne to meet the judgment sum with the balance going to Mr Payne. These orders are stayed until 5pm on 11 October 2004.

[3] The Court also awarded costs against Mr Payne.
[4] Subsequently Mr Payne sought a stay of the order from the High Court, pending the outcome of an appeal against its judgment which he wished to bring to this Court. The Judge delivered an oral judgment on that application on 11 October 2004 stating that the previous judgment had simply implemented the effect of orders of the Courts in earlier proceedings decided between Mr and Ms Payne, the outcome of which he did not accept. By continuing to pursue the matter he was seeking to relitigate questions already finally decided by those Courts. In the circumstances the Judge decided that this was not a case where a stay should be granted, except to the limited extent of enabling Mr Payne to apply for a stay directly to this Court. For that purpose Ellen France J stayed the order on her judgment until 5pm on Monday 18 October 2004. The Judge also indicated that, depending on the outcome of the stay application in this Court, Mr Payne’s application for leave to appeal against the judgment of 7 September could be set down.
[5] On 3 February 2005 MacKenzie J directed the Registrar not to take steps to consider or accept tenders which had been received for the property before 5pm on 14 February 2005, the date allocated for the present hearing in this Court.
[6] The history of this matter goes back to July 1996 when the Family Court made an order in matrimonial property proceedings for sale of the property at Woodhouse Avenue, giving Mr Payne leave to purchase Ms Payne’s share at an agreed price. Different views emerged as to the value of the property and on 27 August 1996 the Family Court stayed its order for sale, pending an appeal against it, subject to payment into this Court of a sum of $118,750 which was half of the average of the parties’ respective valuations of the property. On 29 August 1996 the appellant paid that sum into Court.
[7] Subsequently a dispute arose as to whether, by paying that sum into court, Mr Payne had acquired the interest of Ms Payne in the property, so that he was entitled to the immediate transfer to him of that interest. That issue was resolved by this Court in its judgment in Payne v Payne CA233/02 5 March 2003, delivered by Anderson J, on an application by Mr Payne for leave to appeal against judgments of the High Court and for recall of earlier judgments of this Court. In dismissing these applications this Court concluded that Mr Payne had misunderstood the effect of the payment that was made into Court and found against his contention that he had a right to have Ms Payne’s half interest in the property transferred to him at the time he made the payment into court. The effect of this judgment was to confirm the terms of a judgment of the Family Court, delivered on 23 August 2001, which had ordered that certain further payments be made by Mr Payne to Ms Payne. Once these payments had been made Mr Payne would become entitled to have the other half interest in the property transferred to him.
[8] Mr Payne then applied to this Court for recall of the judgment of 5 March 2003. This application was dismissed by the Court following a hearing at which Mr Payne appeared on 16 June 2004. His attempt to file a further application to have that order recalled was rejected by the Registrar as an abuse of process. He has since submitted a closely similar application to the Registry, in repetition of his earlier abuse of the Court’s process, which is equally futile and of no effect.
[9] Ms Payne then applied to the Family Court to enforce the terms of the Family Court’s orders by ordering the sale of the property and payment out to her from the proceeds of all monies to which Ms Payne was entitled. She has since received the $118,750 paid into Court. The claim she made for the balance of her entitlement under the Family Court’s order and other orders of Court as at 7 November 2003, was $72,203.16. Her counsel indicated to us that the present liability is considerably higher than that figure. All this is disputed by Mr Payne.
[10] The application to the Family Court was transferred to the High Court and was the subject of that Court’s judgment of 7 September 2004. Mr Payne has applied to the High Court for leave to appeal against that judgment. It is not clear to us that leave to appeal is required.
[11] In asking this Court to stay of the orders made by Ellen France J on 7 September 2004, pending the outcome of his proposed appeal to this Court, Mr Payne has argued that the judgment of Ellen France J was wrong, in particular in relying on this Court’s judgment of 5 March 2003 which, in his submission, was wrongly decided. Mr Payne complains as well about the manner in which the sale process in respect of the property has been conducted but that is not a matter before the Court.
[12] Mr Payne maintained at the hearing of the present application that he still had a live application before this Court concerning the 5 March 2003 judgment. He referred to a document which seeks the recall of the judgment of 16 June 2003. This Court has jurisdiction to recall a judgment it has delivered, at any time before it has been perfected, which can be exercised on the application of a party or on the Court’s own initiative: Horowhenua County v Nash [1968] NZLR 632 citing Re Harrison’s share under a Settlement [1955] Ch 260. This jurisdiction, however, is not available to Mr Payne as the Registrar perfected the judgments of 5 March 2003 and 16 June 2003 on 5 March and 18 June respectively, by certifying them under seal.
[13] A more recent approach to the question of reconsideration by Courts of their judgments is that outlined by Lord Woolf CJ in delivering the Court of Appeal’s judgment in Taylor v Lawrence [2002] UKPC 30; [2003] QB 528. Invoking the inherent power of a Court to enable it to act effectively in its jurisdiction, Lord Woolf said that the Court had a general residual jurisdiction to reopen an appeal which it had already determined, in order to avoid injustice. In adopting this approach in this Court in R v Smith [2003] 3 NZLR 617 at [34], Elias CJ added that the power was derived from the Court’s general implicit power to control its own practice, and to suppress abuses of its process.
[14] There is an important cautionary note in the judgment in Taylor v Lawrence concerning how this residual power to reopen should be exercised. The Court acknowledged the need for finality in litigation, pointing out that the reopening of proceedings after the ordinary appellate process has been concluded can also create injustice. Accordingly, the Court’s approach to the exercise of its discretion must ensure proceedings are only opened where “there is a real requirement for that to happen” (at [54]). To that end the discretion concerned should only be exercised with the permission of the Court to be given on a prior written application. The Court would decide on the papers whether the application should proceed, and do so without an oral hearing unless it so directed.
[15] It is unnecessary in this case, to consider whether this Court should adopt the procedure described which is now applied in England. We have heard Mr Payne at length at an oral hearing and are fully aware of his criticisms of the previous decisions of this and other Courts concerning this litigation.
[16] Mr Payne is highly critical of the terms of the Family Court’s orders of 23 August 2001, of the outcome of his appeal to the High Court, and the way this Court has addressed his attempts to get leave to appeal to this Court. His appeal to the High Court was dismissed and in order to get permission to bring an appeal to this Court he needed to persuade either the High Court or this Court that his case had features which warranted a second appeal. He failed to do that. We recognise that he has a different view of his dispute over the effect of the payment he made in August 1996, but other views on that issue were open, one of which was preferred by the Family Court and the High Court on appeal. The fact that Mr Payne remains vehement that his position is the correct one does not of itself warrant the reopening of his litigation. He has not persuaded us that the adverse decisions were an unjust exercise of judicial process. In those circumstances the interests of justice require that the finality of a judicial process that has run its course be respected and that the Court rejects any continuing futile attempts to relitigate the issues involved. The Court’s judgment of 5 March 2003 is the final word on the issues it canvassed and there remains no lawful basis on which it can be challenged.
[17] Unfortunately Mr Payne is not prepared to recognise this, thus leaving the High Court with no option but to order the sale of the property to enforce the earlier orders for payments to Ms Payne.
[18] We apply the normal principles in relation to a stay of a considered judgment of a Court pending an appeal. The Court must balance the prospect of Mr Payne’s success in his proposed appeal, which is nil, against the right of the respondent to be paid her entitlement under the judgment, which is not capable of further dispute. Mr Payne has no prospects of success. Accordingly there is no case made out for a stay.
[19] As indicated the tender process for the sale of the property is well advanced and on the lifting of the temporary stay order, which we continued at the conclusion of the hearing pending delivery of this judgment, the Registrar may well be able quickly to complete a contract of sale. Obviously it is now in Mr Payne’s interests to endeavour to raise the finance to pay out his judgment debt or to make other urgent arrangements to meet it, rather than allow a Registrar’s sale of the property to proceed. We asked Mr Payne at the hearing if he wanted some time to do this, if his application to this Court failed. His response was in the negative. Nevertheless, we will allow a short time for him to endeavour to take such steps should he change his mind.
[20] The application is accordingly dismissed with costs to Ms Payne of $1500 together with reasonable disbursements to be fixed by agreement or failing agreement by the Registrar. The interim stay order which was made by MacKenzie J in the High Court on 3 February 2005, which was continued at the hearing, will continue in effect until 12 noon on 3 March 2005 and then expire.

Solicitors:
Kathy Ertel & Co, Wellington for Respondent