JACKMAN v CLAGUE [2016] NZCA 506

JACKMAN v CLAGUE [2016] NZCA 506 [17 October 2016]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS)ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEHTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY-COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONSIN THE COURT OF APPEAL OF NEW ZEALANDCA162/2016[2016] NZCA 506BETWEEN JEANNE JACKMANAppellantAND PETER LAWRENCE CLAGUERespondentCourt: Wild, French and Brown JJCounsel: D R I Gay for ApplicantC A OʼDonnell and L F Soljan for RespondentJudgment:(On the papers)17 October 2016 at 11.30 amJUDGMENT OF THE COURTThe application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] Proceedings between the parties concerning relationship property were determined first by Judge Rogers1 in the Family Court at North Shore and then on appeal by Nation J,2 who then refused Ms Jackman's application for leave to appeal1 JJ v CPL [2015] NZFC 1426 [Family Court judgment].2 Jackman v Clague [2015] NZHC 2316 [High Court judgment].to this Court.3 On 27 September 2016 this Court declined Ms Jackman's applicationfor leave to bring a further appeal.4[2] We considered that the apportionment of relationship property made by Nation J was plainly open to him on the basis of his analysis of the financial contributions of the parties.5 We did not consider that there had been an error of the nature which formed the basis for the issue which Ms Jackman wished to pursue on a further appeal.[3] In a memorandum of 30 September 2016 counsel for Ms Jackman, Mr Gay, sought recall of our judgment. He contends that our judgment was based on a wrong assumption of fact, namely that, in addition to the financial contribution of $420,000 being the equity in the home which Mr Clague provided, Nation J found that there were other financial contributions of Mr Clague. The recall application is vehemently opposed by Mr Clague. We are satisfied that the application can be adequately and fairly dealt with on the papers.6[4] We observe that Nation J proceeded on the basis he was required to make his own assessment of the evidence which the Family Court Judge had to consider.7 It appears that we read the judgment of Nation J with reference to the issue of financial contributions in a different way from Mr Gay. In particular, we do not consider that, apart from the equity in the home Mr Clague provided, Nation J limited his consideration of the financial contributions of Mr Clague to those quantified in the Family Court judgment.[5] Nation J's analysis of the parties' financial contributions is set out at [63]–[82] of his judgment. It includes not only the equity from the house but also the consideration of Mr Clague's annual income which enabled the parties to enjoy a"relatively expensive lifestyle" and allowed Ms Jackman to devote her time primarily to her son.8 Indeed the High Court leave judgment specifically records3 Jackman v Clague [2016] NZHC 507 [Leave judgment].4 Jackman v Clague [2016] NZCA 463 [Court of Appeal judgment].5 At [15].6 See Court of Appeal (Civil) Rules 2005, r 51(6).7 High Court judgment, above n 2, at [8].8 At [73]–[77], referred to in Court of Appeal judgment, above n 4, at [11].that Nation J had discussed the monetary contributions made by the parties at those paragraphs of his judgment.9[6] Consequently we do not consider that Nation J's consideration was as confined in its analysis of Mr Clague's financial contributions as Mr Gay contends inhis memorandum. Accordingly we reject the contention that our judgment of 27 September 2016 was based upon a wrong assumption of fact.[7] Hence the application for recall is declined.Solicitors:Coast Legal, Orewa for ApplicantDavenports Harbour Lawyers, Auckland for Respondent9 Leave judgment, above n 3, at [10].