VAB v ACRB HC New Plymouth CIV 2009-443-321 [2010] NZHC 210 (2 March 2010)

Last Updated: 16 March 2010

IN THE HIGH COURT OF NEW ZEALAND

NEW PLYMOUTH REGISTRY

_{CIV-2008-443-000321}

IN THE MATTER OF The Property (Relationships) Act 1976

AND

IN THE MATTER OF An Application for Orders

BETWEEN VAB Appellant

AND ACRB Respondent

Hearing: 24 February 2010 (Heard at Wellington)

Appearances: P J Radich and L P Radich for Appellant

R C Laurenson for Respondent

Judgment: 2 March 2010 at 10.45am

_{I direct the Registrar to endorse this judgment with a delivery time of 10.45am on the}

2nd day of March 2010.

_{RESERVED JUDGMENT OF MACKENZIE J}

[1] This is an application for leave to appeal to the Court of Appeal against two

judgments, an interim judgment delivered on 21 May 2009 and a final judgment delivered on 11 December 2009, on an appeal from a decision of the Family Court. Leave is required under s 67 of the Judicature Act 1908.

[2] The test to be applied is the well established test in Waller v Hider [1998] 1

NZLR 412 (CA) and Snee v Snee [1999] NZCA 252; [2000] NZFLR 120. The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving

VAB V ACRB HC NWP CIV-2008-443-000321 2 March 2010

some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.

[3] Both parties made comprehensive submissions on the application. Mr Laurenson submits that the case involves a complicated and unusual set of circumstances, in that it was concerned with the application of the Property (Relationships) Act 1976 to rights acquired by litigation concerning the respondent’s entitlement under his father’s will and under trusts established by the respondent’s family. Mr Laurenson submits that the way in which the litigation has progressed has meant that some significant issues have been addressed for the first time in this Court and have been crystallised only in the final judgment so that in some respects this Court has in effect been the Court of first instance.

[4] Mr Radich opposes the application. He submits that the intended appellant has not framed the questions of principle he wishes the Court of Appeal to determine and has only identified issues which he seeks to have re-litigated. He submits that the intended appellant has not identified a misapplication of legal principle or an error of fact so material that the outcome has been substantially and adversely affected. He submits that the interests of finality in this long running litigation weigh against the granting of leave.

[5] I have reached the view that the case is one where leave to appeal ought to be granted. In paragraph [19] of the interim judgment I said: “I consider that the resolution of this case involves the application of well settled principles to the quite unusual facts.” Whether the principles have been correctly applied is a question which may potentially be the subject of appeal. It involves questions capable of bona fide and serious argument. The unusual nature of the facts means that the issues are not settled by previous authority and to that extent are of some general importance. The amount involved is such that the matter is of considerable significance to the parties.

[6] Because I am granting leave to appeal, I do not consider that it is appropriate

for me to discuss in more detail the submissions made to me on the specific points which will be argued on appeal.

_{[7] Leave to appeal is accordingly granted.}

“A D MacKenzie J”

Solicitors: Radich Law, Blenheim for Appellant

Billings, New Plymouth for Respondent