Jeanne Jackman v Peter Lawrence Clague

• Jurisdiction: New Zealand
• Judge: Nation J
• Judgment Date: 23 March 2016
• Neutral Citation: [2016] NZCA 507
• Docket Number: CIV-2015-404-000685
• Court: Court of Appeal
• Date: 23 March 2016

Between

Jeanne Jackman

Appellant

and

Peter Lawrence Clague

Respondent

[2016] NZCA 507

Court

Nation J

CIV-2015-404-000685

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for leave to appeal to the Court of Appeal against the upholding by the High Court (HC) of a finding that the appellant was entitled to 12.5 per cent of relationship property following a relationship of short duration of two years and five months — the parties’ entitlements to relationship property were assessed on the basis of their respective contributions to the relationship — the HC said that this figure appropriately reflected both the monetary and non-monetary contributions which each had made to the relationship — it assessed this on the basis of an overall impression — the applicant said that the HC had been required to follow two earlier HC decisions which had assessed the value of non-monetary and monetary contributions to the relationship as particular proportions of the overall contributions — whether the HC had failed to take into account non-monetary contributions — whether in applying s14 Property (Relationships) Act 1976 (Marriages of short duration), the court was required to express the relative monetary and non-monetary contributions as a percentage of the total contributions of each party to the relationship.

Counsel:

D R I Gay for the Appellant

C A O'Donnell for the Respondent

JUDGMENT OF Nation J

Introduction

1 The appellant and respondent were in a relationship of short duration, two years and five months. They lived together between November 2009 and 20 April 2012. They were married on 10 July 2010. This being a marriage of short duration, the parties' entitlements to relationship property were to be assessed on the basis of their respective contributions to the relationship. 1

2 In a judgment of the Family Court of 5 March 2015, Judge Rogers held that Ms Jackman was entitled to retain or be paid property worth $144,040. 2 Although the Judge did not say her entitlement was to a 12.5 per cent of relationship property, the effect of her judgment was to entitle Ms Jackman to a 12.5 per cent share of relationship property. Ms Jackman appealed to the High Court.

3 In a judgment of 23 September 2015, I upheld the judgment given in the Family Court. 3 Firstly, on the basis that the Judge had not been in error in the way she assessed Ms Jackman's entitlement. Secondly, given the appeal proceeded by way of a rehearing, on my own assessment of the evidence, I agreed with the judgment reached in the Family Court. I considered, in the particular circumstances of this case, a sharing in the proportions of 87.5 per cent to Mr Clague and 12.5 per cent to Ms Jackman, was appropriate and reflected both the monetary and non- monetary contributions which each had made to the relationship.

Legal test for granting leave

4 Section 67 of the Judicature Act 1908 governs Ms Jackman's application. 4 This provision states that the decision of the High Court on appeal from an inferior court is final, unless the applicant obtains leave to appeal against that decision.

5 The principles for determining whether leave ought to be granted are well settled: 5

• (a) The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to out-weight the cost and delay of the further appeal.

• (b) It is possible for a question of fact to found an appeal, however, it will seldom be of public importance.

• (c) Not every alleged error of law is of such importance, either generally or to the parties as to justify pursuit of litigation which has already been twice considered and ruled upon by a Court.

• (d) The guiding principle is the requirements of justice.

6 In submissions for the appellant, Mr Gay has indicated the appellant wishes to appeal against conclusions in the High Court that:

Potential questions of law

• (a) the judgment of the Family Court Judge was not in error in failing to consider the value of non-monetary contributions when assessing the appellant's overall entitlement;

• (b) the conclusion in the High Court that the judgment in the Family Court was based on relevant evidence and the approach mandated by the Court of Appeal in Reid v Reid; 6 and

• (c) a division of relationship property in the proportions 87.5 per cent to 12.5 per cent appropriately reflected the contributions of the parties to their marriage relationship.

7 The parties have the benefit of a judgment from the High Court which considered whether there had been an error in the approach adopted by the Family Court Judge. In the High Court, I also considered what the parties' entitlements should be on my assessment of the contributions each party had made to the relationship.

8 Mr Gay submits for Ms Jackman that she should be permitted to argue on appeal to the Court of Appeal that the Family Court and High Court made errors of law in not taking into account non-monetary contributions to the relationship. Whether or not an appeal is justified in relation to this argument must be assessed by examining the judgment given in the High Court rather than that given in the Family Court.

9 Mr Gay argues that an appeal on this point is warranted on the premise that in the High Court “no provision was made for non-monetary contributions when assessing the overall contributions of each party to the marriage”. If that had been the case, I would accept there could have been an error which might warrant the

Court of Appeal's consideration of the case, although it is not normally enough to suggest simply that the High Court has been in error. 7 However, the premise for seeking to advance an appeal on this basis cannot be made out given the way in which non-monetary contributions were referred to and considered in the High Court. I do not consider there can be a bona fide and serious argument that either the Family Court or the High Court failed to take into account non-monetary contributions.

10 I considered and discussed the parties' non-financial contributions in some detail in my judgment. 8 I discussed the monetary contributions made by the parties at paras [63] to [82] of my judgment.

11 My judgment also discussed the Family Court's comparative analysis of the relative significance/value of all the contributions which had been made by the parties. 9 At that point, there was again a reference to Ms Jackman's non-monetary contributions. My ultimate determination was that, in the particular circumstances and context of this marriage, the non-monetary contributions were of lesser significance than the monetary contributions. My conclusion was not that non-monetary contributions were of no value or were to be ignored altogether.

12 Ms Jackman's proposed argument that there was an error of law with regard to a failure to consider non-monetary contributions is, in my view, not seriously arguable given the way in which non-monetary contributions were referred to in my judgment in the High Court. It is also not a question that requires consideration by the Court of Appeal because there is no uncertainty as to what the legislation requires. Section 14 requires a Court to have regard to all contributions that are made to the relationship. The legislation makes it clear that contributions will include non-monetary contributions. 10 The Court of Appeal has previously made it clear that, in applying s 14, all contributions should be taken into account. 11

13 A second potential question of law relates to the way in which I assessed the value to be attached to the parties' respective contributions and thus the shares to which they would ultimately be entitled.

14 For Ms Jackman, Mr Gay wishes to argue that the contributions-based analysis, required by s 14 of the Act, must entail a four-stage assessment: 12

• i. an assessment of each party's respective monetary and non-monetary contributions;

• ii. an assessment as to whether and to what extent contributions of one sort (for example, monetary contributions) may be more important and attract a greater weighting than contributions of another sort;

• iii. an assessment of the overall (monetary and non-monetary) contributions of one party compared to those of the other party (expressed as a percentage of the total...