Marhsall v Bourneville [2014] NZHC 2334 (24 September 2014)

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UNDER	the Judicature Amendment Act 1908, the Trustees Act 1956, the Family Proceedings Act 1980
IN THE MATTER	of claims in equity for resulting trust and constructive trust; a claim in tort for knowing assistance/knowing receipt; claim for breach of trust; breach of fiduciary duty; an application for orders direction trustees to transfer property to plaintiff
BETWEEN	CHRISTINE JILL MARHSALL Plaintiff
AND	MICHAEL VICTOR BOURNEVILLE and MARK GRAHAM BLEWDON as trustees of the Victor Frenchie Trust First Defendants MICHAEL VICTOR BOURNEVILLE and MARK GRAHAM BLEWDON as trustees of the Victor Frenchie Trust 19/10/99 - 22/11/01 Second Defendants MICHAEL VICTOR BOURNEVILLE and MARK GRAHAM BLEWDON and MARK BOURNEVILLE _{Third Defendants}

This judgment was delivered by Justice Peters on 24 September 2014 at 4.15 pm pursuant to r 11.5 of the High Court Rules

(b) the Plaintiff’s application dated 4 June 2014 to set aside the Defendants’ appearance and objection to jurisdiction²in respect of the Plaintiff’s sixth cause of action, concerning s 182 Family Proceedings Act 1980 (“Act”).³

[2] The Defendants seek a more explicit statement of claim on the ground that [19], [39], [69], [86](a), [86](b), [86](a)-(j), [89]-[97] inclusive, [94], [96] and the fifth cause of action in the statement of claim (alleging breach of trust) are insufficiently particularised to give fair notice of the claim being made.

[3] The Plaintiff does not object in principle to providing the greater particularity sought but advises that she has not done so to date, so as to minimise costs.

[4] Having heard counsel, I am satisfied that the particulars sought are necessary to give fair notice of the claim being made against the Defendants. The Plaintiff is to file and serve an amended statement of claim which provides the degree of particularity required of the paragraphs/cause of action referred to above. The amended pleading is to be filed and served no later than 4 pm, 13 October 2014. For the reasons which follow, the Plaintiff should not include the sixth cause of action

[5] The Defendants have filed an appearance under protest to the jurisdiction of the High Court to hear and determine the Plaintiff’s sixth cause of action.⁴The Plaintiff has applied to have the appearance set aside.⁵

[6] By her sixth cause of action the Plaintiff seeks orders pursuant to s 182 of the Act. Section 182 confers power on the Family Court (subject to the Plaintiff’s argument below) to inquire into, and make orders, as to arrangements between the parties as to maintenance or property.

[7] For present purposes the issue between the parties is whether, as the Defendants contend, only the Family Court has originating jurisdiction to make such orders or whether the High Court may also make orders under s 182.

[8] As I understand the relevant part of the Plaintiff ’s statement of claim, she is seeking orders under s 182(1) of the Act. So far as is relevant to this judgment, s 182 provides:

(1) On, or within a reasonable time after, the making of an order under Part 4 of this Act or a final decree under Part 2 or Part 4 of the Matrimonial Proceedings Act 1963, a Family Court may inquire into the existence of any agreement between the parties to the marriage or civil union for the payment of maintenance or relating to the property of the parties or either of them, or any ante-nuptial or post- nuptial settlement made on the parties, and may make such orders with reference to the application of the whole or any part of any property settled or the variation of the terms of any such agreement or settlement, either for the benefit of the children of the marriage or civil union or of the parties to the marriage or civil union or either of them, as the Court thinks fit.

2 or Part 4 of the Matrimonial Proceedings Act 1963, has been made and the parties have entered into an agreement for the payment of

maintenance, a Family Court may at any time, on the application of either party or of the personal representative of the party liable for

⁴Appearance under Protest to Jurisdiction (In Respect of Plaintiff ’s Sixth Cause of Action) dated

the payments under the agreement, cancel or vary the agreement or remit any arrears due under the agreement.

(3) In the exercise of its discretion under this section, the Court may take into account the circumstances of the parties and any change in those circumstances since the date of the agreement or settlement and any other matters which the Court considers relevant.

(6) Notwithstanding subsections (1) to (5) of this section, the Court shall not exercise its powers under this section so as to defeat or vary any agreement, entered into under Part 6 of the Property (Relationships) Act 1976, between the parties to the marriage or civil union unless it is of the opinion that the interests of any child of the marriage or civil union so require.

[9] The Defendant’s case is that the effect of the express reference to “a Family Court” in s 182(1) (and in s 182(2) for that matter) is to confer sole originating jurisdiction on the Family Court. “Family Court” is defined in s 2 of the Act as follows:

Family Court means the division of a District Court known, in accordance with section 4 of the Family Courts Act 1980, as a Family Court:

[10] The Plaintiff disputes the submission that sole originating jurisdiction is reserved to the Family Court, and contends that the High Court also has jurisdiction to make orders under s 182(1). Alternatively the Plaintiff contends that the High Court has inherent jurisdiction to make the orders sought.

[11] I am satisfied that the Defendant’s submissions are correct and that, in the absence of a transfer from the Family Court, the High Court does not have jurisdiction to make the orders sought under s 182.

[12] First, there is the express reference in the statutory provisions to the Family

[13] Secondly, as is apparent from the opening words of ss 182(1) and (2), the jurisdiction conferred by s 182(1) and (2) is ancillary to jurisdiction under Part 4 of the Act and Parts 2 and 4 of the Matrimonial Proceedings Act 1963 (“MPA”). In this

case, the Plaintiff has pleaded orders made to date by the Family Court under Part 4 of the Act.

[14] Part 4 of the Act provides for applications concerning the validity of a marriage or civil union, as to whether a marriage or civil union may be void and dissolution of a marriage or civil union. An application under Part 4 must be heard and determined in the Family Court (subject to some circumstances where the Act permits a Registrar to exercise particular powers). For instance, s 38 provides:

(1) Subject to subsection (2) of this section, every application for an order dissolving a marriage or civil union shall be heard and determined by a Family Court.

(2) A Registrar may make an order dissolving a marriage or civil union where —

[15] As I have mentioned, s 182 refers also to Parts 2 and 4 of the MPA. The MPA was repealed by the Act but, whilst in force, Parts 2 and 4 of the MPA made provision for petitions to the (then) Supreme Court for a decree that a marriage was void or for dissolution. The Supreme Court’s jurisdiction in these matters was overtaken by the establishment of the Family Court.

[16] It is consistent with the jurisdictional provisions in Part 4 that the ancillary jurisdiction conferred by s 182 should be vested in the Family Court alone.

[17] Thirdly, with the exception of particular provisions which refer expressly to the High Court, the Act envisages that the High Court’s jurisdiction will be appellate, hearing appeals against orders made by a District or Family Court.⁶

Subject to sections 27, 29, 32, 37, and 48 of this Act, the High Court, District Courts, and Family Courts shall have jurisdiction in proceedings under this Act, only—

(a) Where at the commencement of the proceedings, any party to the proceedings resides or is domiciled in New Zealand:

(b) In the case of proceedings relating to a child, where at the commencement of the proceedings—

[19] I do not consider that s 4 of the Act confers jurisdiction on the High Court to make orders under s 182. I accept the submission of counsel for the Defendants that s 4 puts in place preconditions to any exercise of jurisdiction by the courts referred to but goes no further than that. For present purposes nothing turns on the references in s 4 to ss 27, 29, 32, 37 and 48.

[20] Likewise I am not satisfied that the Court’s inherent jurisdiction extends to making the orders sought. An applicant under s 182 must follow the procedure anticipated by the provision.⁷

[21] It follows from the above that I decline the Plaintiff’s application to set aside the protest to jurisdiction. Given the order in [4] above, no further order would seem necessary but I reserve leave to apply on this particular point should the need arise.

[22] Counsel for the Defendants sought costs on both matters. Counsel for the Plaintiff has confirmed her client is in receipt of legal aid. I decline to make any order for costs as a result.

Hearing:	1 September 2014
Appearances:	A Hart for Plaintiff B P Carter for Defendant
_Judgment:	_{24 September 2014}

High Court of New Zealand Decisions

Marhsall v Bourneville [2014] NZHC 2334 (24 September 2014)