Frykberg v Clark [2019] NZFC 5925

Published 30 June 2020

Interlocutory applications — relationship property — life interest — application to strike out — monetary limit of District Court's equitable jurisdiction — security for costs — discovery — Property (Relationships) Act 1976, s 2 — Family Proceedings Act 1980 — District Court Act 2016, s 76 — District Court Rules 2014, r 5.48 — Family Court Rules 2002, rr 193 & 207(b) — Clark v Clark [2012] NZHC 3159, [2013] NZFLR 534 — Lankow v Rose [1995] 1 NZLR 277 (CA) — Moffat v Barrett HC Auckland, CIV 2010-404-7116 — Re Coyne (2005) 24 FRNZ 922 — JPR v BTR FC North Shore, FAM 2009-044-2295, 28 November 2010 — Twin Bright Shipping Co SA v Tauwhareparae Farms Ltd , HC Gisborne, CIV 2003-416-1, 26 May 2006 — Scales v Scales (2009) 10 NZCPR 479 (HC)— McLachlan v MEL Network Ltd (2002) 16 PRNZ 747 (CA) — J v P [2013] NZHC 557 — Dixon v Kingsley [2015] NZHC 2044. This hearing was to determine interlocutory applications prior to the upcoming long cause hearing to determine the division of the parties' relationship property following the end of their 13 year relationship. The first respondent applied to strike out the applicant's claim for a life interest in a property owned by a trust. This strike out application was rejected as there was an arguable basis for the applicant's claim. The threshold for a strike out application is difficult to meet and the respondent failed to do so. The first respondent also sought security for costs, submitting the applicant would have no means to pay should she be successful or partly successful at the substantive hearing. The Judge found there was no evidence the applicant was suffering from impecuniosity that would prevent him paying costs should an award be made in the respondent's favour. There was money held in a trust that the applicant had access to which could cover these costs. The first respondent's application for security for costs was unnecessary and possibly a delay tactic. The first respondent sought production of documents and discovery. This application was also declined, as rigorous discovery had already occurred. As proceedings between the parties had been going on for over four and a half years, the Judge stated it was important to progress to the substantive hearing and get matters resolved. Judgment Date: 30 July 2019.