Fisher v Fisher

JurisdictionNew Zealand
CourtHigh Court
JudgeNation J
Judgment Date02 November 2015
Neutral Citation[2015] NZHC 2693
Docket NumberCIV-2015-404-000574
Date02 November 2015
Richard Ian Fisher
Raewyn Dawn Fisher

[2015] NZHC 2693



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.


R C Knight and T Kelly for the Appellant

V Crawshaw and J Wademan for the Respondent


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 resolved and whether the High Court was the more appropriate forum for the continuing proceedings

A good deal of discovery had been made by the parties, both formally and informally, before the respondent (Ms Fisher) applied to the Family Court for an order that Mr Fisher make discovery. Both parties had cooperated to some extent in enabling an accountant engaged for Mr Fisher to have relevant documents and to obtain documents from banks. Mr Fisher's counsel had made it clear that those documents were available for inspection. The accountant, Mr Lyne, as an expert, also had an obligation to make those documents available to any expert engaged by Ms Fisher. Mr Lyne was ready to do this.


Nevertheless, it was apparent that there was considerable mutual distrust between the parties. Mr Fisher was also seeking to set aside their s 21 settlement agreement, partially on the basis he was not adequately informed as to the true nature and extent of the property at issue. It was thus understandable that the Judge required Mr Fisher to verify, by way of affidavit, what documents he held personally and particularly what documents he had in his possession at the time the settlement agreement was entered into.


It was also apparent from the Court record that Ms Fisher claimed that Mr Fisher had been responsible for removing a considerable collection of relevant business documents from where they were normally kept, while later in the proceedings she had found relevant documents. There was no evidence as to the particular circumstances in which that had happened.


It was against that background that the Judge considered it appropriate to make orders for both parties to make full Peruvian Guano–type discovery. 6


Since Judge Burns made his decision, the parties and their counsel have had the benefit of KÓS J's judgment in Dixon v Kingsley. 7 In that judgment, his Honour referred to the way the Peruvian Guano approach to discovery had been “shovelled out the door in 2012”, as far as the High Court was concerned. 8 He explained that, while there had not been a change to the Family Court Rules for discovery, given the discretion which the Family Court has with regard to discovery, “a tailored approach is both permissible and desirable”. 9


Ms Crawshaw has only recently, and after the issues had been dealt with in the Family Court, been instructed as Senior Counsel for Ms Fisher. At the beginning of the appeal hearing, Ms Crawshaw advised me that both counsel recognised some discovery would be appropriate but on a much more tailored approach than would have been required by the blanket orders for discovery originally made in the Family Court.


Counsel discussed just how that discovery should be made although the details of this are still to be finalised. It was agreed that the appropriate course for me to take is to allow the appeal, insofar as the orders for discovery are concerned but to substitute orders that require more tailored discovery.


The orders for discovery made in the Family Court are set aside. In their place, I make orders for both parties to provide discovery as to particular documents held by them in terms to be agreed between counsel. Within 21 days of this judgment, counsel are to file a memorandum setting out the scope of discovery which is required and a timetable for inspection of those documents. Leave is reserved to either party to seek further directions as to discovery if that becomes necessary.

The transfer of proceedings to the High Court

Mr and Ms Fisher's relationship began in August 1987. They married in 1988. They ceased living together in October 2002 although it was not a complete or continuing break. They were both directors and, through mirror trusts, equal shareholders in a company, Mahuta Holdings Limited (Mahuta). After 2002, Mahuta was involved in the sale and purchase of certain properties.


Ms Fisher had different jobs at various times throughout the relationship and over the years of the separation. During the latter, there were also times when she was on a benefit. Mr Fisher owned and operated a transport business, Richard Fisher Transport.


The marriage was dissolved on 30 November 2007. They entered into a s 21 PRA relationship property agreement (the Agreement) dated 5 May 2008, settling all property issues between them and associated entities.


The Agreement was implemented with each party taking over certain agreed assets or entities and the sale of certain properties with an accounting between them as to the proceeds. Various issues arose during this process which led to considerable personal animosity and distrust between the parties.


In 2010, Mr Fisher began taking advice as to whether the Agreement may have been unfair. On 7 September 2010, he filed an application for pre-proceedings discovery in the Family Court. Between October 2010 and May 2012, there were issues with regard to the discovery that Mr Fisher was seeking but affidavits were filed by both parties dealing in a general way with the issues which Mr Fisher was seeking to raise and some of the inquiries which he or his advisors were seeking to make.


On 8 November 2012, Mr Fisher filed an application to set aside the Agreement, an application in a substantive PRA claim in a...

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