Dunsford v Shanly

JurisdictionNew Zealand
JudgeMacKenzie J
Judgment Date23 February 2012
Neutral Citation[2012] NZHC 257
Docket NumberCIV-2011-404-5053
CourtHigh Court
Date23 February 2012

In The Matter Of the Property (Relationships) Act 1976 and the District Courts Act 1947

Gaylene Dunsford
Edward John Shanly
First Respondent
Stephen Thomas Woodfield
Second Respondent

[2012] NZHC 257



Appeal against Family Court (“FC”) direction in a relationship property proceeding that an application for setting aside relationship property agreement be heard together with a protest to jurisdiction and substantive relationship property application — husband applied to set aside agreement under s21A Property (Relationship) Act 1976 (“PRA”) (spouses or partners may settle differences by agreement) and for substantive orders as to division of relationship property — wife protested jurisdiction — FC directed all the issues to be heard in one consolidated hearing — whether there was a right of appeal against the FC direction — whether appropriate to hear all the three issues together.


K G Davenport for Appellant

B V McLean for First Respondent


MacKenzie J

This is an appeal against directions given by Judge Adams in the Family Court at Waitakere on 20 July 2011 in a relationship property proceeding between the appellant (the wife) and the first respondent (the husband) in that Court. The second respondent, the trustee of the family trust to which I later refer, abides the decision of the Court.


The wife and the husband were married in 1983. They first separated in December 2004 when the husband left the matrimonial home. He moved back into the matrimonial home for a period from September 2006 until February 2007 when the parties separated for the second and final time. The Family Court proceedings were commenced in 2007 to determine relationship property issues. In August 2008, there was a mediation which led to a mediated agreement under s 21A of the Property (Relationship) Act 1976 (the Act) dated 26 August 2008.


In August 2009, the husband filed an application in the Family Court seeking orders setting aside that agreement, and orders determining the respective shares of the parties in the relationship property and related orders. The wife gave notice of her intention to defend that application. Following a judicial conference on 5 April 2011, the husband filed an amended application. The relief sought included orders in relation to property held in a family trust. The wife then filed a notice of protest to jurisdiction, in relation to the property held in the family trust.


At a further judicial conference held on 20 July 2011, the Judge dealt with an issue relating to a valuer's inspection of the property (about which no issue arises on this appeal), and with the procedure to be followed in dealing with the applications. The Judge described the relevant issue in these terms: 1

To determine the manner in which these proceedings will be managed. The essential issue is whether the protest to jurisdiction should be dealt with as an initial separate step or whether the whole lot should be rolled together and the jurisdictional issues teased out as part of the overall hearing.


The Judge noted that counsel for the wife urged that the protest to jurisdiction be dealt with as a separate issue first. Counsel for the husband urged that the whole property application be set down and heard in one combined hearing on the grounds of efficiency and economy. The Judge dealt with that issue in these terms: 2

As to the procedural issues I observe that this matter has already been through a number of registrar's lists and interlocutory hearings. In my view, whatever the protest to jurisdiction outcome may be, there is clearly a substantive case in terms of a relationship property, as a challenge to the agreement, to be heard.

In my assessment it is pragmatically better to have all of these matters aired at one consolidated hearing upon the basis that the Family Court, at that hearing, can exercise any District Court jurisdiction at the same time. It will be a matter for arguing at that hearing whether relevant issues exceed the jurisdiction of either the Family Court or the District Court, if so, the Judge must deal with those pragmatically and remove such issues to the High Court whether that will delay a decision or a decisive direction in respect of the remaining matters I cannot tell, but in my view that is the appropriate manner of managing this particular case as it currently presents.

With regard to the management of the case, I have heard submissions of counsel, I record that Ms Davenport says she is anxious about the length of hearing that might be required to deal with the protest to jurisdiction, trust and other issues. The application is set aside, the agreement and the substantive property matter, in the event that the agreement were set aside. [sic] Nonetheless it is my view that a fixture should be given for all of these matters in one event.

Is there a right of appeal?

Both parties proceeded on the basis that the appeal was properly brought. Despite that, I have felt it necessary to consider is whether there is a right of appeal against the directions given on 20 July 2011. Section 39 of the Act provides (as relevant) as follows:

  • (1) This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act, to—

    • (a) make or refuse to make an order; or

    • (b) dismiss the proceedings; or

    • (c) otherwise finally determine the proceedings.

  • (2) A party to proceedings in which there is made a decision to which subsection (1) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.

  • (3) The High Court Rules and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under subsection (2) as if it were an appeal under section 72 of that Act.


That section confers a right of appeal in respect of orders finally determining proceedings under the Act. While paragraph (a) is not, on the words of that paragraph, limited to orders which finally determine some substantive right of the parties, the use of the word ?otherwise? in paragraph (c) makes it clear that paragraph (a) extends only to the making of an order, or the refusal to make an order, which has the effect of finally determining the proceedings. Interlocutory orders are not included. 3


Although there is no right of appeal under s 39(1) of the Act, there is authority for the proposition that a right to appeal against interlocutory orders arises under s 72 of the District Courts Act 1947. 4 Amendments to that Act in 2003 substantially removed the previous requirement for leave for appeals against interlocutory orders. For my part, I would, in the absence of authority, have some hesitation in holding that s 72 of the District Courts Act confers a right of appeal additional to that contained in s 39. The wording of s 39(3) is open to the interpretation that, for proceedings under the Act, it is s 39, rather than s 72 of the District Courts Act, which determines the right of appeal, and the relevant District Courts Act provisions (ss 74–78) apply only to an appeal which falls with the scope of s 39. On that analysis, it is arguable that, for the purposes of s 72(1) of the District Courts Act, s 39 provides expressly that there is no right of appeal against a decision to which s 39(1) does not apply. However, following the authorities to which I have referred, I proceed on the basis that s 72 of the District Courts Act does apply to interlocutory decisions in proceedings under the Act.


There is, however, authority to suggest that, even so, not every order or direction as to the conduct of proceedings may be the subject of an appeal. In Association of Dispensing Options of New Zealand Inc v The Opticians Board, the Court of Appeal considered whether the right of appeal to the Court of Appeal from decisions of the High Court, conferred by s 66 of the Judicature Act 1908, applied to a decision of the High Court refusing leave to cross examine on affidavits filed in the High Court proceedings. 5 The Court of Appeal said: 6

The crucial question in this case is whether Wild J's decisions refusing leave to cross-examine, refusing to order production of certain documents at the hearing, and refusing leave to file a further affidavit are within the designation ?judgment, decree, or order? in s 66.


After discussing that question, the Court concluded: 7

Clearly s 66 could not be intended to confer jurisdiction to appeal every decision made by the High Court in relation to the proceeding and before delivery of the substantive judgment. As noted in Winstone at para [19] there are numerous rulings which are simply procedural or administrative, not affecting rights or liabilities as such and where the rights immediately in issue will remain for substantive determination. Such rulings may be made in the pretrial case management process or at trial. Next, rulings on matters of evidence and the scope of the hearing arise broadly in two ways: as a pretrial determination of the shape of the hearing and as decisions in the course of the hearing. Decisions in that second situation in the course of the hearing could not sensibly for policy and practical reasons have been intended to be subject to instant appeal before the completion of the hearing. Equally, interlocutory applications which, as pretrial determinations as to pleadings, discovery, evidence and the like, may substantially affect the shape of the hearing, are separate from the trial process and...

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9 cases
  • Fisher v Fisher
    • New Zealand
    • High Court
    • 2 November 2015
    ...making that submission, Ms Crawshaw asked the Court to adopt the approach which McKenzie J had said would normally be appropriate. In Dunsford v Shanly, his Honour said: 19 I consider that the statutory scheme will ordinarily require that, before a relationship property claim can be brought......
  • Smith v Brown
    • New Zealand
    • High Court
    • 27 September 2013
    ...v S (2004) 24 FRNZ 208 (CA) at [26]. 10C v J, above n 7, at 396. 11I v S HC Christchurch M305/9, 7 November 1997. 12 Dunsford v Shanly [2012] NZHC 257 at [7] 13 For example it was well established in the Court of Appeal that interlocutory decisions which had a substantive effect on rights a......
  • Mahoney v Mahoney
    • New Zealand
    • High Court
    • 17 November 2017
    ...kinds of agreement applies to the property: (a) 4 an agreement under section 21 or section 21A or section 21B: Dunsford v Shanly [2012] NZHC 257. (b) an agreement to which section 21P or section 21Q applies, to the extent that section 21Q applies. [47] Mrs Chambers does not accept these sub......
  • Fisher v Fisher
    • New Zealand
    • High Court
    • 2 November 2015
    ...should be resolved as inexpensively, simply, and speedily as is consistent with justice. [50] 19 20 Fogarty J stated: Dunsford v Shanly [2012] NZHC 257 at [26] (citations KMH v CLH, above n 10. [55] I agree that the latter provision is relevant. It cannot be in the interests of the parties ......
  • Request a trial to view additional results

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