Fisher v Fisher

JurisdictionNew Zealand
CourtHigh Court
JudgeNation J
Judgment Date02 Nov 2015
Neutral Citation[2015] NZHC 2693
Docket NumberCIV-2015-404-000574

[2015] NZHC 2693



Richard Ian Fisher
Raewyn Dawn Fisher

R C Knight and T Kelly for the Appellant

V Crawshaw and J Wademan for the Respondent

Appeals against Family Court (FC) decisions that both parties undertake full Peruvian Guano-type discovery and refusing to transfer the proceedings to the High Court (HC) under s38A Property (Relationships) Act 1976 (PRA) (transfer of proceedings to HC) — the appellant was seeking to set aside an agreement entered into pursuant to s21 PRA (contract out of the Act) — argued that his claim was against trustees and that it might involve equitable principles including equitable tracing and constructive trusts, and the it might involve property the value of which exceeded the FC's jurisdiction — whether the Peruvian Guano-type discovery orders should be set aside in favour of tailored orders — whether the FC Judge erred when taking into account the fact that proceedings had not been filed in the HC — whether it was necessary to determine whether the agreement should be set aside before involving the appellant in more expensive proceedings in the HC — whether it was appropriate to transfer the proceedings to the HC because of their complexity, and the possibility that equitable claims in excess of the FC's or District Court's jurisdiction might be pursued.


Since the Judge first made his discover orders, it had been made clear in Dixon v Kingsley that the Peruvian Guano approach to discovery had been “shovelled out the door in 2012”, as far as the HC was concerned. The decision made it clear that although there had not been a change to the Family Court Rules for discovery, given the discretion which the FC had with regard to discovery, a tailored approach was both permissible and desirable. Accordingly, the appeal against the discovery orders was allowed and they were to be substituted by orders that required more tailored discovery.

A FC Judge had a discretion as to whether proceedings should be transferred to the HC. It was appropriate to recognise the specialist experience and knowledge which the FC Judge had in making an assessment as to what were likely to be the real issues in the case, how they were likely to be most effectively resolved and whether the HC was the more appropriate forum for the continuing proceedings.

There was nothing so complex about the case that made the HC the more appropriate forum. The first and foremost issue was whether the agreement should be set aside. That was the sort of issue with which the FC dealt regularly in more complicated proceedings with a higher value than in this situation.

The Judge had been correct in saying that s38A(2)(b) PRA (transfer — Judge must consider any proceedings before the HC between the same parties and involved related issues) required him to consider proceedings that had been actually filed in the HC when deciding whether to transfer the proceedings to the HC. In considering the complexity of a case under s38A(2)(a) and other matters relevant to s38A(2)(c), the need for constructive trust claims to be brought in the HC could be taken into account, but the mere possibility of such a claim or a mere statement of intention to bring such a claim was of little consequence. For this to be a significant consideration there should be at least a high likelihood that such a claim would eventuate.

A claim that there was a possibility that property owned personally by either Mr or Ms F might have been used to acquire trust property would not be sufficient to give rise to a constructive trust. It might potentially result in claims under s44 PRA (dispositions may be set aside) or 44C PRA (compensation for property disposed of to trust). Because such claims were made pursuant to the PRA, the FC had originating jurisdiction. These were claims which the FC regularly dealt with as part of its specialist jurisdiction.

Allegations of equitable claims —by way of alter ego, sham and tracing” were not causes of action. They were matters which the Court might have to consider in determining what property was owned by the parties personally, what dispositions occurred in relation to that property and how the ultimate value of that property should be brought into account between the parties under the PRA. The FC was well used to dealing with these issues. Further there was little or no evidential basis to suggest major issues of this kind in this case.

There might be cases in which it was appropriate to depart from the two-staged approach of determining if the agreement should be set aside before deciding to transfer the proceedings. Whether or not there should be a two-stage approach to dealing with the issues should be determined having regard to the facts of the particular case.

Section 1N(d) PRA required that questions about relationship property should be resolved as inexpensively, simply and speedily as was consistent with justice”. It was consistent with s1N PRA that when parties had resolved their differences by way of an agreement, such agreements should not be lightly set aside. Nor should a party to such an agreement lose the benefit of the agreement through having to be party to difficult, protracted and expensive litigation of the same sort as would have eventuated but for the agreement.

On the evidence, in this instance a two-staged approach would be appropriate. A decision over transfer should not be made on the basis that a Court would inevitably have to concern itself with potential trust or tracing claims. In the particular circumstances of this case, it was quite possible that the Court would uphold the agreement as it stood. That could mean there would be no further proceedings.

There was no limit on the FC's jurisdiction to determine whether either or both of the parties had, during a relationship, acquired a beneficial or equitable interest in property nominally owned by a third party, including trustees. Where the amount claimed against third parties exceeded $200,000, it might be necessary to pursue that claim in the HC. However, the mere possibility of such a claim would not justify a transfer of the proceedings at the current stage. Further, pursuant to s37 DCA (extension of jurisdiction in admiralty by agreement between the parties), it would be possible for all parties to agree that a Judge in the FC with a DC warrant could deal with such a claim even it was for more than $200,000. It would therefore remain possible for all parties to agree that the FC should continue to have jurisdiction to deal with such claims.

The appeal in relation to the order declining transfer was dismissed. The proceedings remained before the FC.


Nation J

The appellant (Mr Fisher) appeals against decisions of his Honour Judge Burns in the Family Court ordering both parties to file and serve a full list of documents and his refusal to transfer the proceedings to the High Court. 1


Mr Fisher had also made an application in the High Court for a stay of execution of the orders for discovery. That application for stay, by agreement, is also before the Court on the hearing of the appeal.

Approach on appeal

Section 39 Property (Relationships) Act 1976 (PRA) provides a right of appeal against the Family Court making or refusing to make an order. Section 39(3) imports the High Court's Rules and ss 74–78 of the District Courts Act 1947 as part of the procedure on appeal. Pursuant to s 75, the appeal is by way of rehearing. I

am accordingly required to reconsider the Family Court's decision and to substitute my own view if I am satisfied the original Family Court decision was wrong.

I must, however, also recognise any aspects of the Family Court decision which involve the exercise of a discretion. With regard to those aspects of the decision, the principles contained in May v May will apply: 2

In considering an appeal of this kind, an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.


A Family Court has a discretion as to whether it makes an order for discovery in relationship property proceedings which are before the Court. 3 Although the rules require an order for discovery to be in a certain form, a Family Court Judge could, in his or her discretion, give directions as to the particular discovery required to enable the Court and the parties to more speedily and economically resolve the actual issues which are before the Court. 4


A Family Court Judge also has a discretion as to whether proceedings should be transferred to the High Court, although a Judge: 5

… may order the transfer of proceedings to the High Court (only) if the Judge is satisfied that the High Court is the more appropriate venue for dealing with the proceedings.


In considering whether or not to make such an order, the Judge must have regard to the matters referred to in s 38A(2) PRA.


In this instance, the Judge's decisions were reached on the basis of the Court record of the proceedings to date, the submissions of counsel and affidavit evidence. Accordingly, I do not need to recognise the advantage which a Family Court Judge might have derived from seeing and hearing witnesses and being directed to the most significant evidential issues through hearing cross-examination as it occurs. The Judge was required to exercise a discretion in deciding what, if any, orders for

discovery should be made or whether the proceedings should be transferred to the High Court. It is appropriate for me to recognise the specialist experience and knowledge which the Family Court Judge had in making an assessment as to what were likely to be the real issues in the case, how they were likely to be most effectively...

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