Almond v Read - [2016] NZCA 147

IN THE COURT OF APPEAL OF NEW ZEALAND

CA730/2015
[2016] NZCA 147

BETWEEN	JANFERIE MAEVE ALMOND Appellant
AND	BRUCE JAMES READ AND ORS First Respondent
AND	ETHNE GLADYS READ Second Respondent
AND	CHRISTOPHER JOHN READ Third Respondent

Hearing:	18 April 2016
Court:	Harrison, Wild and Kós JJ
Counsel:	D Law and M McFarland for Appellant J Airey for First Respondent N Woods and L Johnson for Second and Third Respondents
Judgment:	21 April 2016 at 11.45 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is declined.
BThere is no order as to costs.

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

We would normally exercise our discretion under r 29A of the Court of Appeal (Civil) Rules 2005 to grant an extension of time to a party whose notice of appeal was filed one day late, and where the delay was caused by her lawyer’s error and there was no prejudice to the respondent. However, in this instance we are satisfied that the appeal is hopeless, and no purpose would be served by granting an indulgence.

Background

The applicant, Janferie Almond, is the sister of Bruce and Christopher Read and the daughter of Ethne Read (collectively the Reads), the respondents. Mrs Read is now 93 years of age and in care.
Ms Almond is the registered proprietor of a rural property in Drury, South Auckland which she purchased in 2002 for a price of $190,000. The Reads allege, and Ms Almond denies, that she bought the property pursuant to an oral agreement that each of them would own beneficial shares in the property proportionate to their respective financial contributions towards the purchase price and subsequent improvements. The Reads allege Ms Almond holds title as constructive trustee for their individual interests in nominated shares. In the High Court Thomas J gave judgment in the Reads’ favour.[1]
[1]Read v Almond [2015] NZHC 2797.
The Judge summarised the factual issues for her determination as follows:
[24] The factual issues to be explored in respect of each of the plaintiffs are extensive and require determination prior to a consideration of the legal issues. They are:
(a)What, if anything, did the parties agree about the purchase of the Property?
(b) Bruce Read:
(i)Did the $130,000 contribution to the purchase price for the Property belong to Bruce Read or Ms Almond?
(ii)What was the basis upon which Bruce Read paid $6,000 towards the cost of a garage constructed on the Property?
(iii)Did Bruce Read purchase Rebecca’s share in the Property for $50,000?
(c)Mrs Read:
(i)Did Mrs Read make three payments of $10,000 towards the purchase of the Property, and if so, were they made in the expectation of obtaining a proportionate interest in the Property?
(ii)Was construction of the subsidiary dwelling and contributions to improvements to the Property made in expectation of obtaining a proportionate interest in the Property?
(iii)Were contributions allegedly to the mortgage over the Property made in the expectation Mrs Read would obtain…

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 [2016] NZCA 147
Case: [2016] NZCA 147
Decision Date: 21 April 2016 at 11.45 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Janferie Maeve Almond to extend the time for lodging a notice of appeal against a High Court judgment. The respondents were Bruce James Read, Ethne Gladys Read, and Christopher John Read. The High Court had found in favour of the Reads, ordering Almond to sell a rural property in Drury, South Auckland and pay compensation. The Reads alleged an oral agreement with Almond regarding ownership of the property, which she denied. The Court of Appeal had to decide whether to grant an extension of time for Almond to lodge her notice of appeal, which was one day late due to a clerical error by her lawyers. The appeal itself concerns the High Court’s findings on the alleged oral agreement, the financial contributions made by the Reads, and Almond’s conduct as her mother’s attorney.

The Court of Appeal considered whether to grant an extension of time to Almond under Rule 29A of the Court of Appeal (Civil) Rules 2005. The Court weighed the length of the delay, the reasons for it, the parties’ conduct, the extent of any prejudice, the prospective merits of the appeal, and whether the appeal raises any issues of public importance. While the delay was due to a clerical error and there was no prejudice to the Reads, the Court found that the appeal was hopeless and would serve no purpose. The Court upheld the High Court’s findings that the Reads were truthful and Almond was not, and rejected Almond’s arguments regarding laches and the applicability of Kwon v Quon. The Court concluded that the appeal had no merit and would not benefit the Reads or the public interest.

The Court of Appeal declined Almond’s application for an extension of time to appeal, finding that the appeal was hopeless and no purpose would be served by granting an extension. The Court noted that Almond was in receipt of an interim grant of legal aid, and therefore no order for costs was made against her. The Court found that if not for the interim grant, Almond would have been ordered to pay costs to the Reads.

Orders