BOURNEVILLE V BOURNEVILLE SC 1/2009
Leave to appeal was refused because the applicant failed to demonstrate the extremely compelling circumstances required to bypass the Court of Appeal, and because the applicant's case faced formidable factual obstacles—namely an apparent post‑separation settlement and the applicant's transfer of property into the...
Source-derived case information.
- Citation
- SC 1/2009
- Parties
- Applicant: Christine Jill Bourneville; Respondent: Michael Victor Bourneville
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 17 March 2009
- Procedural Posture
- Application for Leave to Appeal Directly to the Supreme Court (leap Frog Appeal) / Leave Application Dismissed by Supreme Court
- Outcome
- Application for leave to appeal dismissed
- Legal Topics
- De Facto Relationship Termination, Property (relationships) Act 1976 Ss 44 and 44 C, Leave to Appeal / Leap Frog Appeal, Jurisdictional Bar
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Jill Bourneville
Applicant
Michael Victor Bourneville
Respondent
Procedural Posture
Application for Leave to Appeal Directly to the Supreme Court (leap Frog Appeal) / Leave Application Dismissed by Supreme Court
Legal Issues
- 1 Whether leave to appeal directly to the Supreme Court should be granted despite the Court of Appeal's refusal
- 2 Whether the applicant's legal point on the approach to determining termination of a de facto relationship is sufficiently compelling to justify a direct appeal
- 3 Whether factual matters (settlement after separation and transfer of property) defeat the applicant's claim under ss 44 or 44C of the Property (Relationships) Act 1976
Ratio Decidendi
Leave to appeal was refused because the applicant failed to demonstrate the extremely compelling circumstances required to bypass the Court of Appeal, and because the applicant's case faced formidable factual obstacles—namely an apparent post‑separation settlement and the applicant's transfer of property into the respondent's name—which would likely defeat any claim under ss 44 or 44C of the Property (Relationships) Act 1976.
Court Disposition
Application for leave to appeal dismissed
Orders
- Leave to appeal dismissed
- Costs of $2,500 awarded to the respondent
Full Case Text
Judgment text and source record
1 paragraphs
BOURNEVILLE V BOURNEVILLE SC 1/2009 17 March 2009IN THE SUPREME COURT OF NEW ZEALAND SC 1/2009 [2009] NZSC 19BETWEEN CHRISTINE JILL BOURNEVILLE Applicant AND MICHAEL VICTOR BOURNEVILLE Respondent Court: Elias CJ, Blanchard and Tipping JJ Counsel: A Hart for Applicant B P C Carter for Respondent Judgment: 17 March 2009JUDGMENT OF THE COURT The application for leave to appeal is dismissed with costs of $2,500 to the respondent. REASONS[1] This is an application for leave to appeal directly from the High Court (a leap-frog appeal) made following the refusal of the Court of Appeal to grant leave for an appeal to that Court. There is of course a jurisdictional bar preventing the Court of Appeal's decision from being further appealed. This Court will rarely allow that bar to be avoided by resort to a direct appeal. There must be shown to be extremely compelling circumstances. 11 Burke v Western Bay of Plenty District Council (2005) 18 PRNZ 560 at para [4].[2] We are satisfied that no such compelling circumstances are shown in this case. We proceed on the assumption that the point of law sought to be raised by the applicant concerning the approach to the question of whether a de facto relationship has terminated may be arguable. But the case for the applicant would still face formidable factual difficulties, if that argument were to succeed, both because there appears to have been a settlement of affairs between the parties after they first separated and because the applicant's claim under ss 44 or 44C of the Property (Relationships) Act 1976 seems quite inconsistent with her act of transferring a predecessor property into the name of the respondent.Solicitors: Parnell Law, Auckland for Applicant McWha Law, Auckland for Respondent