MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST V LINDA GALLAGHER [2016] NZCA 502

MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST V LINDA GALLAGHER [2016] NZCA 502 [13 October 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA507/2010CA726/2010[2016] NZCA 502BETWEEN MALCOLM EDWARD RABSON ASTRUSTEE OF THE MALCOLMRABSON FAMILY TRUSTAppellantAND LINDA GALLAGHERFirst RespondentMALCOLM EDWARD RABSONSecond RespondentWAYNE SEYMOUR CHAPMAN ASTRUSTEE OF THE GALLAGHER-RABSON FAMILY TRUSTThird RespondentCA524/2010BETWEEN LINDA GALLAGHERAppellantAND MALCOLM EDWARD RABSONFirst RespondentMALCOLM EDWARD RABSON ASTRUSTEE OF THE MALCOLMRABSON FAMILY TRUSTSecond RespondentWAYNE SEYMOUR CHAPMAN ASTRUSTEE OF THE GALLAGHER-RABSON FAMILY TRUSTThird RespondentCA725/2010BETWEEN MALCOLM EDWARD RABSON ASTRUSTEE OF THE MALCOLMRABSON FAMILY TRUSTAppellantAND LINDA GALLAGHERFirst RespondentMALCOLM EDWARD RABSONSecond RespondentWAYNE SEYMOUR CHAPMAN ASTRUSTEE OF THE GALLAGHER-RABSON FAMILY TRUSTThird RespondentCourt: French, Miller and Brown JJCounsel: Mr Rabson in personN Levy for Ms GallagherJudgment:(On the papers)13 October 2016 at 3.00 pmJUDGMENT OF THE COURTA The application for review of the minute of Harrison J dated 6 October 2016 is declined.B There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] Mr Rabson applies for a review of a minute of Harrison J dated 6 October2016 in which he directed that Mr Rabson's application for the clarification of orderspursuant to an earlier judgment of this Court was set down for hearing on 28 November 2016.Background[2] In a judgment dated 20 December 2011 this Court, comprising O'Regan P,Glazebrook and Ellen France JJ, quashed certain orders of the High Court made on 1 October 2010 and made orders in substitution which included a reservation of leave in the following terms:1C(d) Leave is reserved to the GRFT trustee to apply to the High Court for further directions if required and to any party to apply to this Court for clarification of any matter relating to these orders.[3] On 24 August 2016 Mr Rabson filed an application stating that "as soon as the parties may be heard" he seeks clarification of the 20 December 2011 judgmentpursuant to the leave reserved in order C(d).[4] The nature of the clarification sought was expressed in the application in this way:PARTICULARS OF CLARIFICATION SOUGHT AND REASONS1.0 Was it the expressed purpose of the Judgment to effect an equal distribution of the relationship property between Ms Gallagher and Mr Rabson (being a 50% share for each) under s 44C of the Property (Relationships) Act 1976?2.0 Was it the direction of this Court by the Judgment for its Court- appointed trustee Wayne Chapman who was granted control of the relationship assets to effect a 50/50 equal distribution of the relationship assets he controlled between Ms Gallagher and Mr Rabson, and/or their designated recipient?3.0 Did the Judgment base its directions as to the exact quantum theCourt's trustee was to pay Ms Gallagher first and in full and only thenMr Rabson on the Court's approximate $2,570,000 valuation of therelationship property estate held by its trustee?4.0 If it can be shown this Court's orders in the Judgment have resulted inMs Gallagher receiving $1,300,026.91 and Mr Rabson no distribution1 Rabson v Gallagher [2011] NZCA 669.($0) under this Court trustee's interpretation and approach, does it fallto this Court to amend its orders to effect a 50/50 distribution as found to be the legal imperative of such orders?[5] A memorandum in response by counsel for Ms Gallagher was filed on 8 September 2016. It briefly commented on the four questions in the application andannexed copies of Mr Rabson's and Ms Gallagher's submissions on Mr Rabson'sapplication for leave to appeal to the Supreme Court.[6] All the Judges whose order is the subject of the clarification sought are now Judges of the Supreme Court. Consequently, it will be necessary for Mr Rabson'sapplication to be heard by a differently constituted Court of Appeal.[7] In a minute dated 4 October 2016, Harrison J sought particularity of the nature of the clarification sought by Mr Rabson. The minute stated:[4] This Court's apparent purpose in granting leave to apply forclarification was to allow any uncertainty in implementation of the orders tobe resolved by further directions. It is assumed from Mr Rabson'smemorandum that the properties have now been sold and the fundsdistributed. If so, this Court's function is at an end.[5] However, Mr Rabson is given leave to file by 28 October 2016 a further memorandum identifying the particular order which has yet to be implemented or performed and for which he seeks clarification. Once that step is taken, this Court will determine how the issue is to be resolved.[8] On 5 October 2016 Mr Rabson filed a memorandum in response to thatminute. He took issue with what he described as a "precondition" imposed as a newrestriction to the leave provision in order C(d), and he set out again the four questions in his application for clarification recited above.2[9] A further minute of Harrison J dated 6 October 2016 stated that those four questions would be treated as the particularisation of the orders for which Mr Rabson seeks clarification. Harrison J then set the application down for hearing in the Miscellaneous Motions List at 10.00 am on 28 November 2016 and made timetabling directions for the filing of synopses of submissions.2 At [3].[10] On 7 October 2016 Mr Rabson filed an application for review of the 6 October 2016 minute of Harrison J under s 61A(2) of the Judicature Act 1908.Review[11] Section 61A of the Judicature Act relevantly states:61A Incidental orders and directions may be made and given by 1 Judge(1) In any civil appeal or in any civil proceeding before the Court of Appeal, any Judge of that court, sitting in chambers, may make such incidental orders and give such incidental directions as he thinks fit, not being an order or a direction that determines the appeal or disposes of any question or issue that is before the court in the appeal or proceeding.(2) Every order or direction made or given by a Judge of the Court of Appeal under subsection (1) may be discharged or varied by any Judges of that court who together have jurisdiction, in accordance with section 58A or section 58B or section 58D, as the case may be, to hear and determine the proceeding.[12] The grounds advanced in the application for review include:(a) No party has asked for a hearing as directed in the minute.(b) The duty of the Court to clarify orders in its judgments is "entirely its own" and is not reliant upon submissions of the parties.(c) The period until the allocated hearing date, described as a two-month "diversion", has improperly obstructed the request forclarification and is prejudicial. It is said that the proposed hearing serves no legitimate or useful purpose.[13] The nature of the application for clarification of the Court's orders is onewhich must be considered by three Judges. However, as previously noted, none of the Judges who delivered the judgment sought to be clarified are now available to sitin the Court of Appeal. Consequently, the application for clarification will need to be considered by three Judges, none of whom has any previous involvement in the matter.[14] In those circumstances, we consider that the proper course is for Mr Rabson'sapplication to be allocated an early hearing date so that the Judges who must determine it may have the benefit of assistance of submissions from the parties on the matters said to require clarification.[15] That is precisely the course directed by Harrison J in his minute of 6 October2016, with which we are in complete agreement. Mr Rabson's application will accordingly be heard at 10.00 am on 28 November 2016. The timetabling directions for submissions outlined by Harrison J will apply.Result[16] The application for review of the minute of Harrison J dated 6 October 2016 is declined.[17] There is no order for costs.Solicitors:Mary C Jeffcoat, Wellington for Ms Gallagher