Hearing:	5 December 2016
Court:	William Young, Glazebrook, Arnold, OʼRegan and Ellen France JJ
Counsel:	S I Perese for Appellant J M Airey and A Dullabh for First Respondent N W Woods and P Amaranathan for Second and Third Respondents
Judgment:	30 May 2017

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe application for an extension of time to appeal to the Court of Appeal is granted.
CThe stay will remain in effect until the determination of the appellant’s appeal in the Court of Appeal.
DThe respondents are jointly and severally liable to pay costs of $13,000 to the appellant, plus reasonable disbursements.

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REASONS
(Given by Arnold J)

Introduction

Ms Almond, the appellant, has been involved in a dispute with her mother, the second respondent, and her two siblings, the first and third respondents, about their respective entitlements to a property on which Ms Almond lives. Ms Almond is the sole registered proprietor of the property. The respondents issued proceedings claiming that, when the property was purchased in 2002, there was an oral agreement between all members of the family to the effect that they would each own shares in it, based on their respective contributions to the initial purchase price and to subsequent improvements. They sought orders declaring that Ms Almond holds shares in the property on trust for them. Ms Almond’s position was that the property was held in her name because it was hers; she built her home on what had been bare land and cared for her elderly parents, who lived in a separate dwelling on the property.
In the High Court, Thomas J found in favour of the respondents.[1] The Judge held that the various parties were entitled to specified shares in the property and made an order for the sale of the property so that the shares could be realised.[2] Thomas J also found that Ms Almond had breached her duties under a power of attorney she held from her mother and ordered her to pay compensation of $29,176 plus interest.[3]
[1]Read v Almond [2015] NZHC 2797 [Almond (HC)].
[2]At [251] and [276].
[3]At [273]–[275] and [277].
Ms Almond instructed her solicitors to file an appeal against Thomas J’s decision. Although they served the notice of appeal on the respondents within the mandated 20 working day time period,[4] the solicitors filed it in the Court of Appeal one day late. This was because they miscalculated the last day of the 20 day period. When they were advised by the Court of Appeal Registry that the application was out of time and that an extension of time to appeal was needed, they filed an application for an extension promptly. The respondents opposed the application, on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Almond v Read

Details

AGLC: Almond v Read [2017] NZSC 80
Case: [2017] NZSC 80
Decision Date: 30 May 2017

CaseChat Overview and Summary

In Almond v Read, the Supreme Court allowed an appeal by Ms Almond against a decision of the Court of Appeal which had dismissed her application to appeal out of time to the Court of Appeal from a decision of the High Court. The High Court had found that Ms Almond was not entitled to sole beneficial ownership of a property on which she lived, but rather that she held the property on trust for herself and her siblings and their mother, based on their respective contributions to the purchase of the property and improvements to it. The Court of Appeal had refused to extend the time for filing a notice of appeal to the Court of Appeal on the basis that the proposed appeal had no merit. The Supreme Court held that the Court of Appeal had erred in principle by considering the merits of the proposed appeal at the stage of determining whether to grant an extension of time. The Supreme Court held that in most cases where the delay in filing a notice of appeal is due to an inadvertent error by a legal adviser and the proposed respondents have suffered no prejudice, an extension of time should generally be granted, and that it is not appropriate for the court to consider the merits of the proposed appeal in such cases. In this case, there was no prejudice to the respondents, the delay was minimal, and the reasons for the delay were clearly inadvertent. The Supreme Court granted the application for an extension of time, and held that the respondents were liable to pay the appellant’s costs of the appeal to the Supreme Court.

Orders