Annett v Nurmela - [2018] NZHC 2841

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001110

[2018] NZHC 2841

UNDER the Law Reform (Testamentary Promises) Act 1949

IN THE MATTER

of an appeal against a decision of the Family Court at Auckland

BETWEEN

PAULINE GLYNN ANNETT
Appellant

AND

PENTTI JUHANI NURMELA

First Respondent

PENTTI JUHANI NURMELA as

administrator in the ESTATE OF ANTTI MATIAS NURMELA

Hearing: 30 October 2018

Appearances:

PJ Wright for Appellant

SL Robertson QC for First Respondent

Judgment:

5 November 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 5 November 2018 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Stainton Chellew, Auckland.
Cinque Oakley Senior, Australia. SL Robertson QC, Auckland.

ANNETT v NURMELA [2018] NZHC 2841 [5 November 2018]

The appeal

[1] Mr Andy Nurmela died on 18 January 2015.1 In the seven or so months before his death, Ms Pauline Annett provided Andy intermittent care by, for example, visiting with meals and organising appointments.2 Andy died without a will. His estate was worth approximately $1.4 million. Ms Annett brought a claim for 90 per cent of the estate. Judge L de Jong upheld the claim under the Law Reform (Testamentary Promises) Act 1949, but only to the value of $25,000.3

[2] Ms Annett appeals. She contends the Judge erred in assessing quantum. Section 3(1) of that Act invests a Judge with a broad discretion to award “such amount as may be reasonable, having regard to all the circumstances of the case”.4 Ms Annett argues the award should have been much higher; now $700,000.

[3] Andy’s brother, Mr Peter Nurmela,5 is the sole beneficiary of the estate. Remaining facts are best explored through the decision and grounds of appeal.

The decision

[4] The Judge “had the benefit of hearing from a wide range of witnesses about Ms Annett’s friendship with Andy”.6

[5] He found that friendship “likely began” in the 1970s when Ms Annett and Andy were neighbours in a block of flats.7 The Judge noted their lifestyles were “... completely different. Andy grew cannabis, drank alcohol, had poor hygiene, and lived in squalid conditions Ms Annett … tolerated his way of life.”8

1      Antti Matias Nurmela.
2      I use Andy’s Christian name to distinguish him from his brother, and vice versa.
3      Chen v Nurmela [2018] NZFC 3810.
4      Law Reform (Testamentary Promises) Act 1949, s 3(1).
5      Pentti Juhani Nurmela.
6      Chen v Nurmela, above n 3, at [56].
7 At [56].
8 At [56].

[6] In or about 2010, Ms Annett had an accident. Because of it, she stopped work. The Judge found Ms Annett and Andy “developed a closer friendship” from then, albeit perhaps “not … as close as Ms Annett suggests.”9

[7] On 29 May 2014, Andy had a car accident. He was badly injured. When released from hospital, Andy stayed with another friend for approximately six weeks.
After a “falling out” with this friend, Andy…

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.

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Details

Case: [2018] NZHC 2841
Decision Date: 5 November 2018

CaseChat Overview and Summary

The appeal before the court concerns a claim made by Ms Pauline Annett against the estate of Andy Nurmela, who died intestate. Ms Annett sought 90% of Andy's estate, valued at approximately $1.4 million, under the Law Reform (Testamentary Promises) Act 1949. The Family Court initially awarded Ms Annett $25,000, a decision she now appeals. Ms Annett contends the award was inadequate, arguing that the Judge failed to consider the totality of her services to Andy over their long friendship, the significance of Andy's promise to her, and the strained relationship between Andy and his brother, the sole beneficiary of the estate.

The court found that Ms Annett and Andy had a longstanding friendship dating back to the 1970s, but the services provided by Ms Annett were confined to the period between Andy's return home and his death. The court held that the friendship, companionship, affection, and emotional support provided by Ms Annett before June 2014 did not exhibit anything additional to constitute services within the Act. The court also found that while Andy's promise to Ms Annett was significant, it did not necessarily mean the Judge erred in awarding a much lesser amount. The court held that the Judge was right to award Ms Annett only a modest sum but wrong not to consider the importance of Ms Annett's services at a time when Andy either would not or could not call on his only surviving family member for help.

The appeal was allowed, and the award of $25,000 was quashed and replaced with an award of $75,000. The court held that the award was too low but should remain modest, given the brief period over which Ms Annett provided material services in a time of need, the promise made in circumstances of vulnerability, and Andy's familial isolation absent estrangement. The court also noted that Ms Annett's claim for almost the entire estate, and then $700,000 on appeal, was unrealistic. The court encouraged the parties to agree on costs on a 2B basis, with the possibility of filing memoranda if an agreement could not be reached.

Orders