ROSS V ROSS CA CA259/06

ROSS V ROSS CA CA259/06 27 September 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA259/06 [2010] NZCA 447BETWEEN BRYAN KEITH ROSS Appellant AND TEDDI ALISON ROSS Respondent Hearing: 15 September 2010 Court: Randerson, Rodney Hansen and Allan JJ Counsel: G J Thwaite for Appellant J L Foster for Respondent Judgment: 27 September 2010 at 3 p.m.JUDGMENT OF THE COURTA The appeal is dismissed. B The appellant must pay costs to the respondent as for a standard appeal on a band A basis together with usual disbursementsREASONS OF THE COURT(Given by Allan J) [1] The parties to this appeal, each born in the USA, were formerly husband and wife. They married in 1989 and separated in 1999. There were no children. For much of their marriage they lived in the USA. Following separation, the respondent commenced proceedings in the Supreme Court of New York in respect of matters arising out of their marriage. Some issues were settled; others (includingmaintenance) were not. An order for periodic maintenance was made in favour of the respondent in the New York proceedings. The appellant complied only partially with the order. [2] Subsequently, the respondent sought and obtained a judgment against the appellant in the Supreme Court of New York in respect of the appellant's failure to comply with the earlier order. The judgment for US$66,315.25 included provision for lawyers' fees and carried interest. The appellant paid only a small proportion of the amount of the judgment. [3] Both parties have now moved permanently to New Zealand. In 2006 the respondent commenced proceedings in the High Court on the New York judgment in reliance on the inherent jurisdiction of the Court to enforce foreign judgments. Her application for summary judgment was heard by Associate Judge Christiansen on 12 October 2006. On 31 October 2006 he delivered a judgment granting the application.1 Judgment was entered against the appellant for US$84,776.54 together with interest, costs and disbursements. [4] The appellant now appeals against the making of the order for summary judgment.Issues on appeal[5] The grounds set out in the appellant's notice of appeal have been refined somewhat since the appeal was commenced. Counsel are agreed that the following issues require determination: (a) Did the High Court of New Zealand have jurisdiction to enforce the judgment of the Supreme Court of New York? (b) If so, would enforcement of that judgment nevertheless be contrary to New Zealand public policy?1 Ross v Ross HC Auckland CIV-2006-485-1309, 31 October 2006(c) Was the judgment of the Supreme Court of New York given in breach of the principles of natural justice? (d) Whether the High Court failed to consider a material question as to the quantum of the judgment of the Supreme Court of New York.Further background[6] The trial of the respondent's proceeding in the New York Supreme Court took place on 12 and 14 March 2001 before Panepinto J. The Judge granted a divorce on the second day of the hearing after the appellant withdrew his opposition to the making of an order. The parties were also able to agree as to the distribution of relationship property. That left for resolution by the Court questions relating to maintenance, health insurance and counsel's fees. [7] Each of the parties gave evidence at the trial. At the conclusion of the hearing it was agreed that the parties, through their lawyers, would submit written argument to the Court by 5 April 2001. [8] The Judge delivered a detailed written judgment on 27 April 2001. The evidence was reviewed at length. The Judge said:Accordingly, considering the applicable statutory factors, the Court awards plaintiff maintenance in the amount of $300.00 per week for a period of three (3) years, retroactive to June 23, 1999, to be paid by defendant weekly over the next three years. Defendant may elect to pay the retroactive amounts due sooner. Plaintiff shall be responsible for maintaining her own health insurance.In addition, the Judge awarded the respondent the sum of $15,000 in respect of legal costs, together with disbursements of $1,415.25. [9] By 10 September 2003, the appellant had paid only US$4,400. On that date, the respondent applied to the New York Supreme Court for a money judgment against the appellant in respect of the balance of the amount owing under the earlier judgment. The respondent obtained an order to show cause from the New YorkSupreme Court. The appellant accepts that he was served with a copy of the order and that, having taken legal advice, he decided to take no step in the proceedings. [10] The hearing of the respondent's enforcement application was initially set for 9 October 2003, but was adjourned to enable proof of service to be furnished to the Court. Ultimately, the respondent obtained judgment in the New York Supreme Court on 16 December 2003, in the appellant's absence. The 16 December 2003 judgment was for US$66,315.25, payable forthwith. [11] The appellant took no steps to challenge the judgment of 16 December 2003. Between 27 May and 28 August 2004, he made three separate payments to the respondent, each of US$800; otherwise there have been no payments in respect of the amount owing under the December 2003 judgment.First issue: Does the High Court have jurisdiction?[12] Neither the registration and enforcement provisions appearing in Part 8 of the Family Proceedings Act 1980, nor the Reciprocal Enforcement of Judgments Act 1934 apply to this case. The State of New York is not a designated jurisdiction for the purposes of either enactment. The respondent accordingly relied upon the inherent jurisdiction of the High Court to recognise and enforce, where appropriate, final judgments of foreign courts. [13] The High Court's jurisdiction was usefully explained by Tipping J in Kemp v Kemp:2It is a general principle of private international law that, subject to three exceptions, a judgment in personam of a foreign Court of competent jurisdiction, which is final and conclusive on the merits in the foreign country, is to be regarded as final and conclusive in New Zealand as between the same parties and their privies and as regards any issue which the judgment or order settles. Subject to the exceptions, such an overseas judgment is not impeachable or examinable on its merits whether for error of fact or of law. In proceedings on a foreign judgment the burden lies on the party who seeks to impeach it. The three exceptions which constitute the recognised grounds for impeachment are first that the judgment was obtained by fraud, secondly where its enforcement would be contrary to2 Kemp v Kemp [1996] 2 NZLR 454 at 458.local public policy and thirdly that the proceedings in which the judgment was obtained were contrary to natural justice. For completeness it should also be noted that a foreign judgment is not generally enforceable if it relates to taxes or penalties.[14] More recently in Reeves v One World Challenge LLC, O'Regan J (writing the majority judgment for himself and Anderson P) said: 3Legal principles [36] The Master considered the legal principles that applied to the enforcement of foreign judgments, referring to case law and the leading text, Collins (ed), Dicey and Morris on the Conflict of Laws (13th ed, 2000). In general terms, an order for a foreign judgment will be enforceable in New Zealand subject to three basic requirements ("jurisdictional matters"): (a) The foreign Court must have had jurisdiction to give judgment; (b) The foreign judgment must be for a definite sum of money; and (c) The foreign judgment must be final and conclusive.[37] There are limited exceptions. The two exceptions relied on in the High Court were, as mentioned above: (a) That enforcement of the foreign judgment would be contrary to public policy; and (b) That the proceedings in which the judgment was obtained were opposed to natural justice.[15] The foregoing principles are not in dispute, but Mr Thwaite for the appellant advances as a threshold argument the contention that the High Court lacked jurisdiction to entertain proceedings founded on the Supreme Court judgment of 13 December 2006. He says that the New York judgment was a "maintenance order", that original jurisdiction to grant a maintenance order rests in this country with the Family Court pursuant to s 11 of the Family Court's Act 1980, and that the High Court accordingly lacked jurisdiction to enforce the New York judgment because to do so would be to make a maintenance order which the High Court has no power to grant. [16] There is no merit in this argument. The judgment of the New York Supreme Court of 16 December 2003 was not a "maintenance order". Rather, it was a final3 Reeves v One World Challenge LLC [2006] 2 NZLR 184 at [36].money judgment given in the context of the appellant's earlier failure to comply with an order for the payment of periodic maintenance. [17] In support of her summary judgment application, the respondent relied upon an affidavit by Mr Joel Robinson, a New York attorney, who also holds a Bachelor of Laws degree from the University of Auckland. Mr Robinson produced relevant portions of the Civil Practice Law and Rules of the State of New York, together with a commentary on those Rules in McKinney Consolidated Laws of New York.[18] The judgment of 16 December 2003 was entered pursuant to DRL § 244 of the Civil Practice Law. That section provides:Where a spouse in an action for divorce, separation or annulment, or declaration of nullity of a void marriage, or a person other than a spouse when an action for an annulment is maintained after the death of a spouse, defaults in paying any sum of money as required by the judgment or order directing the payment thereof, or as required by the terms of an agreement or stipulation incorporated by reference in a judgment, such direction shall be enforceable pursuant to section fifty-two hundred forty-one or fifty-two hundred forty-two of the civil practice law and rules. Upon application the court shall make an order directing the entry of judgment for the amount of arrears of child support together with costs and disbursements. The court shall make an order directing the entry of judgment for the amount of arrears of any other payments so directed, together with costs and disbursements, unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears. The court shall not make an order reducing or cancelling arrears unless the facts and circumstances constituting good cause are set forth in a written memorandum of decision. The application for such order shall be upon such notice to the spouse or other person as the court may direct. Such judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments. The relief herein provided for is in addition to any and every other remedy to which a spouse may be entitled under the law, provided that when a judgment for such arrears or any part thereof shall have been entered pursuant to this Court, such judgment shall thereafter not be subject to modification under the discretionary power granted by this section; and after the entry of such judgment the judgment creditor shall not hereafter be entitled to collect by any form of remedy any greater portion of such arrears than that represented by the judgment so entered. Such judgment shall provide for the payment of interest on the amount of any arrears if the default was wilful, in that the obligated spouse knowingly, consciously and voluntarily disregarded the obligation under a lawful court order. Such interest shall be computed from the date on which the payment was due, at the prevailing rate of interest on judgments as provided in the civil practice law and rules.[19] The commentary in McKinney on DRL § 244, indicates that the rule: eliminates the necessity for having to commence a separate litigation and allows an application for a money judgment to be made within the context of the matrimonial action within which the payment was ordered. . Once a judgment is entered, the judgment is final and it may be enforced like any other money judgment. If arrears are reduced, the creditor party can only enforce the reduced amount but the defaulting party may not seek a further reduction for the same arrears, now insulated in a judgment.[20] We consider that, whatever the status of the earlier order made in the judgment of 27 April 2001, the subsequent judgment of 16 December 2003, read in the light of s 244, was a simple money judgment enforceable in this country by resort to the summary judgment procedure. [21] But even if, contrary to our view, the 16 December 2003 judgment was a "maintenance order" for the purposes of s 11 of the Family Proceedings Act 1980, the High Court would not thereby be deprived of jurisdiction. [22] Mr Thwaite's argument is that the decision of the Legislature to confer originating jurisdiction in respect of maintenance applications on the Family Court must be taken to have abrogated the general jurisdiction of the High Court to entertain proceedings based on foreign judgments for maintenance. He accepts that, prior to the date of commencement of the Family Proceedings Act, the High Court would have had the requisite inherent jurisdiction, reflected in statutory form in s 16 of the Judicature Act 1908, but that by necessary implication such jurisdiction has been lost. [23] Mr Thwaite's argument is bereft of both supporting authority and logic. It is illogical because if accepted it would deprive the respondent of any effective enforcement procedure. Mr Thwaite says that the respondent could make a fresh application to the Family Court in this country, but any such application would be futile. Res judicata principles apply. The respondent has obtained a valid final judgment in a foreign court. The Family Court has no jurisdiction to vary that judgment. [24] The inherent jurisdiction of the High Court applies both to substantive and procedural powers. The inherent jurisdiction may be excluded by statute but onlywhere the statutory purpose is plain. Clear statutory wording is required as the Supreme Court recently emphasized in Zaoui v Attorney-General.4 As this Court stated in R v Moke: 5... it is both unwise and unnecessary to seek to define the scope of the Court's inherent jurisdiction. Broad principles governing its exercise is all that is required. The Court may invoke its inherent jurisdiction whenever the justice of the case so demands. It is a power which may be exercised even in respect of matters which are regulated by statute or by rules of Court providing, of course, that the exercise of the power does not contravene any statutory provision. The need to do justice is paramount. (See Master Jacob's article, "The Inherent Jurisdiction of the Court") .6[25] As Mr Thwaite accepted, there is no express statutory exclusion of the power of the High Court to enforce a maintenance order made by a foreign court (assuming, contrary to our view, that the judgment at issue is a maintenance order and not simply a money judgment). Nor is the inherent jurisdiction of the High Court in this respect clearly excluded by necessary implication. The Family Courts Act 1980 does not deal with the enforcement of foreign maintenance orders. And the fact that the United States is not currently a designated country for the purposes of Part 8 of the Family Proceedings Act 1980 (relating to the enforcement in New Zealand of foreign maintenance orders) does not carry any implication limiting the jurisdiction of the High Court in such cases. It is unnecessary for us to decide whether the inherent jurisdiction of the High Court is excluded in the case of maintenance orders made in countries where the Part 8 procedure is available and nothing in this judgment should be taken as expressing any conclusion about cases in that category. [26] We are satisfied that the long-established entitlement of the High Court to recognise an in personam judgment of a foreign court of competent jurisdiction such as the Supreme Court of New York is not excluded by statute either expressly or by necessary implication. [27] It follows that the learned Judge had jurisdiction to enter summary judgment in this case.4 Zaoui v Attorney-General [2005] 1 NZLR 577 (SC) at [35] – [37] and [44].5 R v Moke [1996] 1 NZLR 263 at 267.6 Master Jacobs "The Inherent Jurisdiction of the Court" (1970) CLP 23 at 24.Second issue: Public policy[28] It is common ground that a final judgment of a foreign court will not be enforced in New Zealand if to do so would be contrary to public policy. But the public policy exception is limited in scope and is to be narrowly approached. [29] O'Regan J in Reeves provided a useful summary of the public policy exception:[57] The major texts on private international law frame the exception narrowly, and place the legal threshold at a high level. North and Fawcett, Cheshire and North's Private International Law (13th ed, 1999) frame the test as one of "repugnance" at p 123: "Certain heads of the domestic doctrine of public policy command such respect, and certain foreign laws and institutions seem so repugnant to English notions and ideals, that the English view must prevail in proceedings in this country." [58] North and Fawcett go on to say at p 123: "[I]t is essential to resist the suggestion that an action concerning a transaction governed by a foreign law must necessarily fail because it would have failed had the governing law been English. Judges in the past have now and then expressed somewhat extravagant views on the matter. Thus, for instance, in a restraint of trade case, Fry J seemed to suggest that every limb of the domestic doctrine must apply in every action in England. This can scarcely be so. The conception of public policy is, and should be, narrower and more limited in private international law than in internal law. A transaction that is valid by its foreign governing law should not be nullified on this ground unless its enforcement would offend some moral, social or economic principle so sacrosanct in English eyes as to require the maintenance at all costs without exception." [59] Dicey and Morris at para 14-142 notes that there are very few reported cases in which foreign judgments in personam have been denied enforcement or recognition for reasons of public policy at common law, thus illustrating the close confines of the exception. [60] There is also a considerable body of case law that supports the test adopted in Saldanha, and which suggests that a narrow approach should be taken to the public policy exception. In Society of Lloyd's v Meinzer,Feldman JA for the Court said at para [60]: "The review of the case law confirms that the public policy exception is narrow . . . and therefore, it has rarely been applied." [61] Feldman JA noted a trend expressed by two Canadian Supreme Court cases (at para [60]) which is to:"[E]mphasize the concept of comity among nations and particularly among provinces of this country when addressing the issue of enforcement of judgments and choice of law. In both cases, the role of the public policy concept was left, in effect, as a safety valve to prevent anomalies." [62] Other Canadian decisions, Burchell v Burchell [1926] 2 DLR 595 (Ont:SC), Saldanha, and Boardwalk Regency Corp v Maalouf (1992) 88 DLR (4th) 612 (Ont:CA), are authority for the proposition that, even though the case could or would have been decided a different way in the home jurisdiction, the foreign judgments will still be enforced. [63] In the Australian decision, Stern v National Australia Bank [1999] FCA 1421, Tamberlin J, after surveying the case law and commentaries on the public policy exception, said at para [143]: "[143] The thread running through the authorities is that the extent to which the enforcement of the foreign judgment is contrary to public policy must be of a high order to establish a defence. A number of the cases involve questions of moral and ethical policy, fairness of procedure, and illegality, of a fundamental nature." [64] The New Zealand Courts have also emphasised that the public policy exception is a narrow one (see, for example, Banque Indosuez v Bourgogne(HC, Auckland, M 662/89, 12 January 1990, Wylie J) at p 9 and Bank of Kiribati Ltd v Harrison (1990) 3 PRNZ 111 at p 115). [65] For completeness, we note that there are some decisions that set the threshold for the exception much lower. For example, in Jones v Poffenroth(HC, Auckland, CP 188/86, 14 March 1986), Smellie J refused to enforce a judgment where the proceedings in the State of California had been tainted by maintenance and champerty. In our view, that set the bar too low, and the weight of judicial and academic authority would tell against such a low threshold.[30] To similar effect, in the context of the enforcement of foreign arbitration awards are Amaltal Corporation Ltd v Maruha (NZ) Corp Ltd7 and Hi-Gene Ltd v Swisher Hygiene Franchise Corp.8[31] We accept Mr Thwaite's submission that public policy considerations may be wide enough to encompass both procedural and substantive matters. As we understand it, Mr Thwaite's public policy argument falls into three parts. First, he argues that because originating jurisdiction is conferred in respect of maintenance only upon the Family Court in this country, the High Court ought not to have jurisdiction to entertain a foreign judgment founded upon a maintenance order,7 Amaltal Corporation Ltd v Maruha (NZ) Corp Ltd [2004] 2 NZLR 614 at [41]-[47] (CA).8 Hi-Gene Ltd v Swisher Hygiene Franchise Corp. [2010] NZCA 359 at [21]-[23].simply as a matter of public policy. We have already rejected that argument, which gains nothing from the suggested public policy context. [32] Mr Thwaite's second argument concerns New Zealand's family law structure. He argues that the structure of the courts and contemporary family law legislative patterns, express: a view of basic morality, or an essential principle of justice or a moral interest of New Zealand.These moral considerations are not precisely the same as those in the State of New York. Accordingly, he contends, public policy considerations of themselves preclude recognition of a foreign judgment for maintenance in the High Court. [33] We have already held against Mr Thwaite as to the character of the foreign judgment. In our view, it is simply a money judgment. His public policy argument must be considered in the light of that conclusion. [34] Mr Thwaite cited copious authority in support of the proposition that courts will, as appropriate, decline to recognise foreign orders and judgments where to do so would conflict with basic tenets of morality or legislative policy within the jurisdiction of that court. His examples included Mayo-Perrot v Mayo-Perrot9(where an Irish court refused enforcement of an English maintenance order ancillary to a divorce by reason of the non-availability of divorce in Ireland); Qureshi v Qureshi10 (where it was suggested that a court might refuse to recognise an Islamic Talaq divorce on public policy grounds, in the context of a wife's entitlement to maintenance); Stern v National Australia Bank11 (where the Court, citing textbook authority, thought that an order for maintenance of a child not confined to minority or other specified period might be contrary to public policy); Meyer v Meyer12(where the Court refused to recognise a German divorce obtained under duress); andHolt v Thomas13 (where the Court held that it had power to decline to enforce a9 Mayo-Perrot v Mayo-Perrot [1958] IR 336 (SC).10 Qureshi v Qureshi [1971] 1 All ER 325 (Fam) at 346 ([63] and [64]).11 Stern v National Australia Bank [1999] FCA 1421 at [139].12 Meyer v Meyer [1971] 1 All ER 378 (Fam).13 Holt v Thomas (1987) 39 DLR (4 TH ) 117 (ABQB) at 123.foreign judgment for maintenance where to do so may conflict with a domestic rule against hoarding). [35] In each of those cases, the Court was obliged to consider an issue which fell, comfortably in our view, within established public policy grounds of the type identified in Reeves and Hi-Gene. [36] Mr Thwaite identifies no such issue here. Rather, he relies upon the specialist court structure established here in respect of family matters, the appointment of a specialist Family Court bench, the provision of counselling services, the existence of a number of statutory enactments related in broad terms to the welfare of families, to wider statutory provisions aimed at protecting families and family relationships, and finally to societal assumptions and aspirations which underpin the current legislative ethos. He does not compare those considerations with their New York counterparts, but simply argues that, taken together, they render family law issues in New Zealand unique to the extent that it would be contrary to public policy to enforce maintenance decisions of another jurisdiction. [37] The established public policy exceptions to the entitlement of litigants to enforcement of a foreign judgment are limited. There is no principled basis upon which we could accede to Mr Thwaite's somewhat diffuse argument. The mere existence of a coherent legislative scheme underpinned by certain moral assumptions is insufficient to bring a case such as this within the narrow public policy exceptions identified in the recent authorities. [38] The third public policy ground relied upon concerns the separate decisions of the appellant and respondent to move to New Zealand. Mr Thwaite argues that, in general, the law governing maintenance obligations ought to be that of the country with which the obligation has its closest real connection, and that the High Court needed to apply New Zealand law because both parties resided here. [39] We reject that proposition. The judgment of 16 December 2003 was a money judgment which reflected the appellant's failure to comply with the terms of an earlier maintenance order made between parties who were present in New York forthe hearing and actively participated in it. At the time the appellant was content to submit to the jurisdiction of the New York Court. It is not therefore legitimate to identify differences in the detail of the law relating to spousal maintenance here and in New York, and to brand as contrary to public policy the enforcement of the New York order on the basis of those differences. [40] We therefore reject also the contention that "at a minimum the High Court would need to review the New York judgment for conformity with New Zealand law". [41] In any event, we are not satisfied that there was any significant disparity between the law applied by Panepinto J and that which would have applied in this country. [42] Ms Foster helpfully compiled a schedule which compared the criteria to be taken into account in New York with those that are relevant here. There is a very significant degree of overlap. It is unnecessary to reproduce Ms Foster's analysis. We are grateful to her for her assistance on the point. It is sufficient to say that the relevant New York legislation covers broadly the same ground as the comparable statutory provisions here. It is not possible therefore to conclude that public policy considerations are engaged. [43] Mr Thwaite argues also that variation rights are more limited in New York than they are here, and of itself, that is sufficient to raise public policy exceptions. [44] We have considered the relevant New York rules, which it is unnecessary to reproduce here. It appears that the appellant's right to apply for variation or remission in respect of the orders made by Panepinto J was limited, and available only in the event that the respondent took action for contempt against him for failure to comply with the Court order. But later, when the respondent applied for a money judgment in respect of the arrears, the appellant was entitled to seek a variation by way of reduction or remission of arrears. He chose not to do so.[45] We accept that the powers of a Family Court Judge in this country to vary a maintenance order appear to be significantly wider and more flexible than those set out in the relevant New York legislation, but the differences fall well short of justifying resort to the established and limited public policy exceptions. [46] Neither, in public policy terms, is it relevant, as Mr Thwaite contends, that Part 8 of the Family Proceedings Act applies to certain states of the USA including California, and so provides a convenient legislative path for registration and subsequent review of maintenance orders made in the states concerned. For reasons which are not before the Court, New York is not among those jurisdictions to which Part 8 applies. We are obliged to give effect to the law as it stands in respect of orders made in jurisdictions to which Part 8 does not apply. [47] Moreover, the Court must not lose sight of a countervailing public policy consideration which concerns the need for effective enforcement of foreign judgments. It is plainly desirable in the context of the administration of the law relating to families that the courts in this country are empowered to take effective measures so as to ensure that maintenance obligations, imposed in foreign jurisdictions, are met. [48] Where a party such as the appellant is subject to such obligations, it is in the public interest that the High Court be and remain empowered to recognise and enforce orders validly obtained elsewhere.Third issue: Natural justice[49] Mr Thwaite maintains that the appellant has an arguable defence to the summary judgment application, in that: (a) The respondent abused the procedure of the Supreme Court of New York by suing the appellant in the proceeding giving rise to the 16 December 2003 judgment when she had a strong connection with New Zealand and was probably living here, and he himself was based in New Zealand; and(b) The appellant did not have adequate notice of the first hearing or any notice of the final resumed hearing. [50] It is common ground that a judgment obtained in breach of the requirements of natural justice may be impeached on public policy grounds. 14 In the circumstances of this case it is untenable to argue that the respondent's decision to seek to enforce in New York the maintenance order earlier obtained there amounts to an abuse of process. Mr Thwaite did not develop his bare contention. [51] The second point concerns the procedure adopted in respect of the December 2003 proceeding. The appellant was served on 23 September 2003 with an order that required an appearance in New York on 9 October 2003, some 16 days later. When the appellant did not appear the hearing was adjourned without notice to him, in order that the respondent might prove service. The appellant was given no notice of the 16 December hearing. [52] The appellant says he could not afford to travel to New York in October, or indeed in December. But there was no evidence that he did anything at all to notify the respondent or the New York Supreme Court of his desire to participate in the proceeding. Indeed, his evidence is to the effect that, having taken legal advice in New Zealand, he deliberately chose not to become involved. [53] On that undisputed evidence there can be no suggestion of a breach of natural justice. We reject this ground of challenge to the order granting summary judgment.Fourth issue: Quantum[54] This issue concerns the incidence of tax on maintenance payments. It appears that in New York maintenance is tax deductible to the payer but taxable to the payee, whereas in New Zealand maintenance is not tax deductible to the payer and is tax exempt to the payee. 15 So it may be a proper inference that, because it is deductible, the quantum of the New York order will in general be higher than an equivalent New Zealand order . Mr Thwaite submits that the High Court should be14 Kemp v Kemp [1996] 2 NZLR 454.15 Income Tax Act 2007, s CW 32.called upon to make an adjustment, having taken evidence and heard argument on the point. As we understand his argument, it is that the High Court was bound to adjust quantum downwards, in order to reflect the different incidence of tax in respect of New Zealand maintenance orders. [55] We disagree. We consider that the question of quantum was for the Supreme Court of New York to determine on the evidence available to it. The High Court had no power to vary the judgment of that court simply because a different result might have been achieved had proceedings been taken in New Zealand. In any event, the appellant has placed nothing before the Court as to his tax position in New York. Neither are we told what evidence was placed before the Court in the proceeding in which the maintenance order was made, although it appears that the appellant made a belated unsuccessful (post-hearing) attempt to place before that court informal evidence as to his tax position. [56] We are satisfied there is nothing in this point.Result[57] We have not been persuaded that the learned Associate Judge was wrong to grant the respondent's application for summary judgment. The appeal is accordingly dismissed. The respondent is entitled to costs calculated in accordance with band A together with the usual disbursements.Solicitors Macky Roberton, Auckland for Respondent