MOORE V MCNABB CA CA175/04

MOORE V MCNABB CA CA175/04 18 October 2004IN THE COURT OF APPEAL OF NEW ZEALAND CA175/04BETWEEN BRIDGET MARY MOORE Appellant AND IAN MARTYN MCNABB Respondent Hearing: 18 October 2004 Coram: Anderson P Hammond J William Young J Appearances: M I Sewell for Appellant W J Palmer for Respondent Judgment: 18 October 2004JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J[1] This is an application for leave to appeal out of time from a judgment of Chisholm J which he delivered in the High Court at Christchurch on 12 May this year. [2] The underlying case relates to a dispute as to property between two people who were formerly de facto partners for some 12 years. The appellant went into the relationship with nothing and the respondent with around $470,000. At the end of the relationship, the assets of the appellant remained minimal whereas the assets of the respondent (leaving aside a legacy) were $805,000. Much of the difference would appear to have been accounted for by inflation and re-zoning. There was comparatively little in the way of direct financial or economic input into the relationship from the appellant.[3] The result of the case was that the Judge awarded the appellant 25% of the relevant increase in the respondent's assets (or around $84,000). The key conclusions were expressed in para [61] of the judgment:[61] Given the factual situation under consideration I am satisfied that the only realistic solution is to adopt a global approach. It would be quite impossible to endeavour to accurately unravel this relationship on a decision by decision or asset by asset basis. I am also satisfied that the Court should take into account that whereas the defendant went into this relationship with around $468,000, the plaintiff went in with very little in the way of material assets. Any other approach would be unrealistic and contrary to justice. This suggests that the primary focus should be on the appreciation in the value of the defendant's assets during the course of the relationship, namely, around $337,000. It also needs to be kept in mind that the plaintiff's compensation should only be to the extent that she has not already been compensated by the benefits she received. In all the circumstances it seems to me that an award of 25% of $337,000, namely, $84,250, will satisfy the requirements of equity in this case.[4] With costs which were fixed finally on the 18 August, the total award is around $110,000. [5] The time for filing an appeal lapsed on 10 June. An attempt to file an appeal was made on 23 July or 24 July. If we treat 24 July as the relevant date, the period of delay is around six weeks. The application for leave to appeal out of time was filed on 13 August, just over two months after the time for filing an appeal expired, but still before the quantum of costs was fixed. [6] The appellant, or more accurately speaking the appellant's legal advisers, assumed that time for the appeal ran from when the judgment was sealed (see Brown v Afele [2003] 3 NZLR 433) and thus overlooked the new Court of Appeal Rules which came into effect on 1 January this year under which time runs from when the judgment is pronounced. As well, the appellant seeks to rely on ill-health (in the form of rheumatoid arthritis and depression) which she says flared up following the decision which she now wishes to challenge. [7] The respondent claims prejudice. He says he wishes to commit to an investment proposal which will require him to outlay $100,000 approximately, something he is not prepared to do if the appeal is allowed to proceed. So far he has invested time and around $2,000 in the project. His evidence was not particularlyexplicit as to whether this was before or after 10 June, but presumably it was after 10 June but before becoming aware that the appellant wished to appeal. He also notes that she is legally aided and that accordingly he is unlikely to be able to recover costs against her. He is aggrieved by the order for costs made by Chisholm J as he apparently offered her more by way of a Calderbank offer than she was awarded. [8] He challenges her post-judgment incapacity and has produced a photo of her in apparent good health and gardening which appeared in a newspaper on 24 May. Ms Sewell gave an explanation from the Bar for this photograph which she says was taken before the judgment was delivered. The newspaper article is not explicit as to when the photograph was taken. In those circumstances we see no need to go into this particular issue any further. [9] On the material there is an excuse for the late filing of the appeal. The appellant would appear to have been caught out by a change in the law. The prejudice alleged by the respondent does not seem to have been caused so much by the delay but rather would have been suffered by him if there had been a timely appeal. [10] The more important issue for us is whether there are substantial grounds for regarding the appeal as genuinely arguable. [11] Chisholm J reviewed the evidence carefully and none of his primary findings of fact are in issue. Instead the only challenge is to his evaluative assessment by which he fixed the allowance at 25% of the increase in value of the respondent's assets. No decision was cited to us in which this precise mechanism for fixing an interest has been used. We accept that in the end it is the result rather than the mechanism which is important. But having given the whole question careful consideration, we are of the view that it is open to argument that the approach taken by Chisholm J was too niggardly. [12] In those circumstances we propose to allow the appeal to proceed despite it being out of time. We reserve costs given the appellant's legal aid status. We makeit clear however, that she has received an indulgence. The respondent was entitled to resist this closely balanced application and has incurred costs as a result. When this case is finally resolved, the appellant one way or another, will be required to meet the costs of today's hearing. [13] In the meantime, costs are reserved and the application for leave to appeal out of time is granted as sought.Solicitors: Armagh Law, Christchurch for Appellant Buddle Findlay, Christchurch for Respondent