Payne v Payne [2005] NZCA 122 (25 May 2005)

Court of Appeal of New Zealand

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Payne v Payne [2005] NZCA 122 (25 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA239/04
CA63/05

BETWEEN ROGER JOHN PAYNE
Applicant

AND JEANETTE ROSSLYN PAYNE
Respondent

Hearing: 10 May 2005

Court: Glazebrook, William Young and Robertson JJ

Counsel: Applicant in person
E M Cleary for Respondent

Judgment: 25 May 2005

JUDGMENT OF THE COURT

All applications are dismissed. Mr Payne is to pay Mrs Payne $1,500 costs and usual disbursements.

REASONS

(Given by William Young J)

Introduction

[1]	The background to this unfortunate litigation is largely discussed in the decision of this Court delivered on 17 February 2005 (under CA239/04). Since then there have been some developments. In particular, Ms Cleary told us that an agreement sale and purchase of the former matrimonial was signed on 15 April for settlement on 27 May and that the consideration is $355,000.
[2]	Before us Mr Payne seeks the recall of three earlier judgments delivered on 5 March 2003, 16 June 2003 and 17 February 2005 and what he describes as leave to appeal against a minute of MacKenzie J of 13 April.

The recall applications

[3]	The primary decision which Mr Payne wishes to challenge is the judgment delivered on 5 March 2003 in which this Court declined him leave to appeal from a decision of the High Court dismissing an appeal from a Family Court judgment.
[4]	The initial application by Mr Payne for the recall of this judgment was heard on 16 June 2003. Mr Payne, perhaps unwisely, commenced the presentation of his case by reading what he styled a "victim impact statement". According to him, the presiding Judge terminated the hearing at the conclusion of that exercise by announcing a dismissal of the recall application.
[5]	We note that other applications for recall have been dealt with administratively as being in abuse of process.
[6]	The judgment of 17 February 2005 involved a refusal to stay an order made in the High Court on 17 September 2004 requiring the sale of the former matrimonial home. In his argument to us, Mr Payne complained that this judgment dealt with matters which lay outside the scope of the application before the Court. This complaint is unfounded - all that the Court determined was the application for a stay which was before it, albeit that this necessarily required a more general consideration of the case as a whole. The Supreme Court subsequently refused leave to appeal against this judgment. Given that an agreement for sale and purchase has now apparently been concluded, the underlying issue has been overtaken by events.
[7]	As indicated, Mr Payne’s complaints largely come back to the decision of 5 March 2003 declining him leave to appeal and the related fact that his challenge to the High Court decision has never been the subject of a substantive appeal. Mr Payne’s fundamental position is that he does not accept the correctness of the High Court decision (and of course the underlying Family Court decision). He maintains that both decisions were wrong - so obviously wrong, that he cannot accept that any other view of them is possible. Thus he simply does not accept that there is any reasonable basis upon which leave to appeal ought to have been declined.
[8]	His beliefs in this regard are very deeply held and probably unshakeable. This is unfortunate as the whole imbroglio has been very damaging (to say the least) to Mr Payne in many respects (employment and otherwise) and this is likely to continue. The way in which the judgment in favour of Mrs Payne is to be enforced means the economic consequences of his non-co-operation with the sale process will be borne by him.
[9]	The judgment refusing leave to appeal which was delivered on 5 March 2003 is not itself subject to appeal. The jurisdiction to recall judgments is rarely resorted to and only in narrow circumstances. On a traditional approach, there is no scope for the exercise of this jurisdiction as the relevant order was long ago perfected (ie sealed). If it is the case that there remains a jurisdiction to re-open the judgment notwithstanding sealing (a point discussed in our 17 February 2005 judgment), then at most there could be a single attempt to do so. It is not consistent with an orderly system of justice for a litigant to be permitted to challenge repeatedly what by statute is meant to be a final decision.
[10]	All applications for recall are dismissed.

Leave to appeal against the minute of MacKenzie J of 13 April 2005

[11]	The High Court put in place a tender procedure for the sale of the former matrimonial home. This process was necessarily affected by Mr Payne’s adamant opposition to, and unwillingness to co-operate with, the sale. This meant that there were major limits to the marketing which the real estate agents could carry out.
[12]	Selling a house in this way is not likely to result in its full value being achieved.
[13]	Mr Payne sought to persuade the High Court to stop the sale but this was dealt with administratively by MacKenzie J in his minute of 13 April 2005. The Judge saw the application as an abuse of process.
[14]	We are prepared to accept that the minute of 13 April can be treated as a judgment. On this basis Mr Payne has a right to appeal (and not merely a right to seek leave to appeal). We accordingly treat his application as if it were an appeal.
[15]	As is the case with the 17 February 2005 judgment, the challenge to the decision of MacKenzie J has now been over-taken by events as an agreement for sale and purchase has now been entered into.
[16]	We accept that Mr Payne can point to features about the sale process which are unusual but given that these are by way of response to his policy of non-co-operation, this seem to us to be of peripheral significance. His complaint about the sale is simply another manifestation of his refusal to recognise the judgment which is being enforced. In effect, by challenging the sale, he was trying to challenge collaterally a final judgment. This is not permissible. So we agree with MacKenzie J that the challenge to the sale was an abuse of process.

Result

[17]	All applications are dismissed. Mrs Payne is awarded costs of $1,500 and usual disbursements.

Solicitors:
Kathy Ertel & Co, Wellington for Respondent