Boswell v Mitchell [2017] NZCA 105 (4 April 2017)

Last Updated: 11 April 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
CA495/2016 [2017] NZCA 105
BETWEEN	ANTHONY DAVID KENNETH BOSWELL Appellant
AND	SARAH-JANE MITCHELL Respondent

Hearing:	29 March 2017
Court:	Randerson, Cooper, Brown JJ
Counsel:	D A T Chambers QC and J M McGuigan for Appellant M W Vickerman and Z L Wackenier for Respondent
Judgment:	4 April 2017 at 11.30 am

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. There is no order for costs on the appeal.

100. The appellant is entitled to costs in the High Court in the amount of 50 per cent of band 2A costs for an originating application and usual disbursements.

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REASONS OF THE COURT

(Given by Brown J)

[1] On 13 June 2013 a consent order was made in the District Court of the Hong Kong Special Administrative Region (the Hong Kong District Court) reflecting a mediated settlement of the parties’ matrimonial dispute.
[2] Ms Mitchell’s application for registration of that consent order in New Zealand under the Reciprocal Enforcement of Judgments Act 1934 (the Act) was declined by Hinton J for the reason that the Hong Kong District Court is not a “superior court” for the purposes of the Act and hence a judgment of that Court is not registrable.^[1] That decision is not challenged. Consequent upon the Judge’s direction an amended pleading has been filed which includes a claim to enforce the consent order at common law.
[3] However, apparently for completeness, the Judge proceeded to consider Mr Boswell’s contention that the consent order had been obtained by fraud on the part of Ms Mitchell and for that additional reason the order could not be registered under the Act.^[2] Hinton J concluded that the consent order had not been obtained by fraud.^[3] We do not consider that it was appropriate to determine the fraud issue in the absence of pleadings suitable to a determination of this nature and without oral evidence and cross-examination.^[4] As well it is evident from the applications now made to adduce further evidence on appeal that the parties recognise that there was insufficient evidence to attempt to do so.
[4] On this appeal Mr Boswell seeks to challenge the Judge’s rejection of the fraud allegations. The issue is whether this Court has the ability to entertain such an appeal.
[5] As the Supreme Court stated in Arbuthnot v Chief Executive of the Department of Work and Income, a successful litigant cannot seek to have an appeal body overturn unfavourable factual or legal conclusions made on the journey to the favourable result which have had no significant impact on where the decision-maker ultimately arrived.^[5] There is no right of appeal against the reasons for a judgment, only against the judgment itself.^[6] Mr Boswell was the successful litigant in the High Court, resisting registration of the consent order because the Act does not apply to it. He does not have a right of appeal against the Judge’s rejection of his additional ground for resisting registration.
[6] At the hearing before this Court, it became apparent that a key reason for Mr Boswell’s purported appeal was his apprehension that, in Ms Mitchell’s claim to enforce the consent order at common law, he would be estopped by the Judge’s findings from advancing his fraud allegations as a defence to that claim.
[7] It is plain from Arbuthnot that that apprehension was misconceived. The Supreme Court stated:^[7]

The Courts have therefore adopted a cautious and flexible approach to the [issue estoppel] doctrine. They have determined, for example, that a finding of fact or law against a successful party, which has no right of appeal against the decision in its favour, will not found an estoppel because it could not have been fundamental to the decision.

[8] Although there was a suggestion in an earlier memorandum of counsel for Ms Mitchell that at the hearing of the claim to enforce the order at common law the Court would be “constrained” by the earlier fraud findings on the application under the Act, Mr Vickerman acknowledged that the fraud allegations could be raised in opposition to the claim. For the avoidance of doubt, we record that the claim at common law is to be determined uninfluenced by any findings of Hinton J concerning fraud in the course of the unsuccessful application for registration under the Act.
[9] Although it is inevitable that the appeal must be dismissed, both sides claimed success on the appeal and each sought costs. While for the reasons above the appeal was misconceived, the perception that it was necessary to challenge Hinton J’s findings on fraud was influenced by Ms Mitchell’s apparent view that those findings constituted some constraint on the defence to the pending claim. In the circumstances we consider that costs in this Court should lie where they fall.
[10] Counsel also raised the issue of costs in the High Court which were reserved. Ms Mitchell’s application in the High Court was unsuccessful but Mr Boswell similarly failed on his alternative basis for resisting the application. In those circumstances we consider that Mr Boswell is entitled to an award of costs in the High Court in the amount of 50 per cent of band 2A for an originating application and usual disbursements.

Result

[11] The appeal is dismissed.
[12] There is no order for costs on the appeal.
[13] The appellant is entitled to costs in the High Court in the amount of 50 per cent of band 2A costs for an originating application and usual disbursements.

Solicitors:
Turner Hopkins, Auckland for Appellant
Wynyard Wood, Auckland for Respondent

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^[1] Mitchell v Boswell [2016] NZHC 2056.

^[2] Applying the same principle as that under s 6(1)(d) of the Reciprocal Enforcement of Judgments Act 1934 which provides that the registration of a judgment is liable to be set aside if it was obtained by fraud.

^[3] Mitchell v Boswell, above n 1, at [59]–[64].

^[4] Svirskis v Gibson [1977] 2 NZLR 4 (CA) at 9.

^[5] Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1 NZLR 13.

^[6] At [25] citing Lake v Lake [1955] P 336 (CA) at 343–344.

^[7] Arbuthnot v Chief Executive of the Department of Work and Income, above n 5, at [30] (footnotes omitted).