AThe appeal is dismissed.
BThe appellant must pay the respondent costs for a standard appeal on a band B basis (plus an allowance for increased costs with an uplift of 25 per cent) and usual disbursements.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

The issue in this appeal is whether Peters J erred in making an order that a caveat not lapse.[1] We have concluded that the appeal is without merit and should be dismissed for the reasons that follow.

Background

[1] Rickard v Bethell [2012] NZHC 411.

The dispute concerns a 10 acre block on a farm of some 815 acres. The farm is located on the southern side of Bethells Road, west of Auckland. It has been owned by the Bethell family for many generations.
John Bethell died on 10 December 1985. Under his will his son Ross became the registered proprietor of the farm subject to cls 7 and 8. Those clauses related to the respondent, Christine Rickard, who is Mr Bethell’s daughter and Ross’ sister. Clause 7 directed the executors that:
… a portion of the land contained in [the farm property] and comprising ten (10) acres more or less together with the camp and shop buildings thereon (if any) is to be and is hereby let to … [Ms Rickard] during her lifetime at an annual rental of ONE DOLLAR ($1.00) …
The effect of cl 7 was to grant Ms Rickard a life interest in a portion of the farm property comprising 10 acres more or less together with any camp and shop buildings thereon.
Clause 8 directed the executors as follows:
8.I DIRECT that the area of land behind the McKAY sub-division be divided so that the following areas are transferred to the person named hereunder:-
(a)Ten acres to … [Ms Rickard] being the same land referred to in Clause 7 herein and if so sub-divided [off] my main block Clause 7 need no longer have any effect.
…
Thus cl 8 required the executors to subdivide and then transfer to Ms Rickard 10 acres of the farm property behind the McKay subdivision. If the area was subdivided off the main block, the life interest conferred by cl 7 would be extinguished.
The will also contained in cl 9 a devise of property comprising 2.5 acres (Lot 5) that had been sub-divided into sections to be sold with the residue of the proceeds being held on trust in equal shares for the four children including Ross and Ms Rickard.
Relevant to the provision for the transfer of the 10 acres of farm property to Ms Rickard in cl 8 and the bequest relating to…

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 Bethell v Rickard

Details

AGLC: Bethell v Rickard [2013] NZCA 68
Case: [2013] NZCA 68
Decision Date: 22 March 2013

CaseChat Overview and Summary

The appeal in Bethell v Rickard was brought by Victoria Elizabeth Bethell against Christine Anne Rickard. The dispute concerns the interpretation of a family arrangement deed, which modifies a will, and the extent of Christine Rickard's entitlement to a portion of a farm. Christine Rickard lodged a caveat over the entire farm property to protect her claimed interest in 10 acres of the land. Victoria Bethell sought an order that the caveat lapse. The Court of Appeal dismissed the appeal, finding that Christine Rickard had a reasonably arguable case for her interest in 10 acres of land as per clause 6(i) of the deed. The Court of Appeal held that the interpretation of the deed and the facts surrounding its execution are matters to be determined at trial. The appeal was dismissed with costs awarded to Christine Rickard.

Orders