Busch v Ireland
[2016] NZCA 391
•11 August 2016 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA650/2014 [2016] NZCA 391 |
| BETWEEN | ROLIEN GEERTRUIDA BUSCH |
| AND | DENNIS PAUL IRELAND AND ANGELA CATHERINE IRELAND |
| AND | STEPHEN JOHN GRANT AND DAVID JAMES SMILLIE |
| Hearing: | 19 May 2016 |
Court: | Ellen France P, Stevens and Kós JJ |
Counsel: | T J Shiels QC for Appellant |
Judgment: | 11 August 2016 at 10 am |
JUDGMENT OF THE COURT
A The application for leave to admit new evidence is declined.
BWe answer the question for which leave was granted in the affirmative, namely, that the High Court Judge applied the correct approach on appeal. The appeal is dismissed.
C Costs are reserved pending the filing of memoranda as set out in [63].
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France P)
Table of Contents
| Para No | |
| A testamentary promises claim The Irelands’ children Mr Scott | [1] [4] [15] [17] [20] [30] [30] [37] [51] [53] [55] [57] [60] [63] |
A testamentary promises claim
Dennis and Angela Ireland brought a claim in the Family Court under the Law Reform (Testamentary Promises) Act 1949 (the Testamentary Promises Act). They claimed the appellant’s adoptive mother, Betty Osmand, made a testamentary promise to them. The claim was unsuccessful.[1] That was because Judge Flatley found that no testamentary promise was made to the Irelands. The Irelands appealed to the High Court. In the High Court, Gendall J heard new evidence and allowed the appeal.[2] As a result an award was made in favour of the Irelands.
[1]Ireland v Grant [2013] NZFC 8802 [Family Court decision].
[2]Ireland v Grant [2014] NZHC 1523 [High Court decision]. Whata J granted leave to adduce the further evidence: Ireland v Grant [2014] NZHC 613.
The appellant was granted leave to appeal by this Court on this question:[3]
Given the Family Court at first instance had made findings of credibility against the first respondents, did the High Court apply the correct approach on appeal?
[3]Busch vIreland [2015] NZCA 82. The relevant leave provision is s 67(2) of the Judicature Act 1908. Gendall J had declined leave to appeal: Ireland v Grant [2014] NZHC 2496.
The appeal accordingly raises issues about the appellate approach where issues of credibility are involved and new evidence is admitted on the appeal.[4]
Background
[4]Mr and Mrs Ireland are bankrupt and the Official Assignee is defending the appeal. The second respondents, Messrs Grant and Smillie for the estate, did not take an active part in the appeal.
We draw on the summary of the factual narrative set out in the High Court judgment.[5]
[5]High Court decision, above n 2, at [1], [3] and [14]–[22].
Mr Ireland’s parents were friends of Mr and Mrs Osmand. He spent periods on the Osmand’s farm property as a young boy. As a result of family tragedies, including the death of Mr Ireland’s mother, and at Mrs Osmand’s insistence, Mr Ireland began living with her and her husband. Mr Ireland’s evidence was that from this time (when he was aged about 11) he was raised as the Osmands’ son.
In the mid-1970s, Mr Ireland worked overseas. He met his wife. The Irelands married in 1983 and had three children whilst living in England.
Mr Ireland says Mrs Osmand asked the Ireland family to return to New Zealand from around 1989. During the 1990s Mr Ireland visited New Zealand to sort out the logistics of a move back to New Zealand. The family relocated in 1998 on what was to be a permanent basis but Mr Ireland had to go back to England when the sale of a business he ran in England fell through. He stayed on there for about 10 months. Mr Ireland then fell ill and Mrs Ireland returned to England with the children to support him.
By the time the Irelands had worked through these issues and were ready to come back to New Zealand, a foot and mouth outbreak in the United Kingdom stopped them from travelling. After that, Mrs Ireland became ill and this again delayed their travels. The Irelands eventually returned to New Zealand in 2002.
When the Irelands first returned to New Zealand in 1998 they lived in a Versatile cottage built on the Osmands’ farm. In 2002 on their return they bought the neighbouring property, which they lived in until it was destroyed by a fire in 2011. For about a year after the fire the Irelands lived in Mrs Osmand’s home. They then moved to the Versatile cottage where they were living at the time of the Family Court hearing.
In her will made in 1991, Mrs Osmand left the bulk of her estate and farm to Mr Ireland. However in a later will signed in 2001 and in her final will of 2008 she left the bulk of the estate to the appellant, who is her adopted daughter. Mrs Osmand died on 4 September 2011.
The Irelands brought a claim in the Family Court against the estate. They claimed Mrs Osmand had promised to reward them if they gave up on their life in England and returned to New Zealand to work for Mrs Osmand and provide services during her lifetime by leaving the farm to them.
Judge Flatley in the Family Court dismissed the Irelands’ application. He found the evidence did not support the claim Mrs Osmand made either an express or implied promise with testamentary disposition as reward for services rendered or work undertaken.[6] The Judge did not therefore consider the other elements of the testamentary promises claim.[7]
[6]Family Court decision, above n 1, at [199].
[7]At [200].
The Judge expressed concern about the Irelands’ credibility. The concern focused on four parts of their evidence, namely, the number of trips Mr Ireland made to New Zealand, the tenancy agreement that the Irelands entered into in relation to the Versatile cottage despite their evidence they had paid for the construction of the cottage, the manipulation of letters kept by Mr Ireland, and the general lack of documentary evidence that could have been obtained to corroborate the claims made.[8]
[8]At [177].
The Irelands appealed to the High Court under s 5A of the Testamentary Promises Act. That section provides a right of appeal by way of re-hearing to the High Court against the decision of the Family Court. In the High Court, Gendall J heard new evidence from Katherine Forsdyke, Mrs Ireland’s mother. The Judge concluded that a promise had been made by Mrs Osmand to the Irelands.[9] Services were rendered and work undertaken by the Irelands in reliance on that promise[10] and there was a nexus between the two.[11] Justice Gendall made an order vesting 50 per cent of the farm in the Irelands.[12] If unsuccessful in her appeal on the question posed at [2], the appellant does not challenge the quantum of the award.
Application for leave to admit new evidence
[9]High Court decision, above n 2, at [86].
[10]At [91] and [94]–[97].
[11]At [98].
[12]At [112].
The appellant sought leave to introduce new evidence on the appeal before this Court. The proposed evidence comes from Pauline Van Der Byl who was at one point in business with Mr Ireland and is now in a dispute with him over that business. She would give evidence of a discussion with Mr Ireland in 2011 after the fire had burnt down the Irelands’ house. She said Mr Ireland told her that he had been cut out of Mrs Osmand’s will. That would be advanced to contradict Mr Ireland’s account he did not know of the change in position.
We agree with Mr Andersen for the first respondents that this proposed evidence is not directly relevant to the matters in issue. Rather, it relates to a collateral matter and not the question of whether or not there was a testamentary promise. Accordingly, we do not see the proposed evidence as cogent in terms of determining the appeal. We decline leave to adduce this evidence on appeal.
The appellant’s case on appeal
At the heart of the appellant’s case is the submission that Gendall J overlooked the customary caution to be applied to findings of credibility in the Court below. In developing this submission, Mr Shiels QC for the appellant says, first, this error resulted from the Judge’s misstatement of the approach to appellate review set out in Austin, Nichols & Co Inc v Stichting Lodestar.[13]
[13]Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 [Austin, Nichols].
Secondly, the appellant argues that Gendall J did not correctly approach the new evidence admitted on the appeal. Rather, contrary to the decision of the Supreme Court in Kacem v Bashir, the Judge treated the new evidence as an opportunity to consider the matter afresh.[14]
[14]Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
Finally, to the extent that Gendall J said he deferred to the credibility findings in the Family Court, the Judge did not in fact do so. Mr Shiels emphasises in this context the particular features of testamentary promises cases, namely, the expectation of frankness and the need for greater caution if evidence is falsified.[15]
The appellate approach
[15]Citing, for example, Ace v Guardian Trust [1948] NZLR 103 (SC) at 106; and Powell v Public Trustee [2003] 1 NZLR 381 (CA) at [34]. See also Jones v Public Trustee [1962] NZLR 363 (CA) at 372–373; and Bill Patterson Law of Family Protection and Testamentary Promises (4th ed, LexisNexis, Wellington, 2013) at [13.17]–[13.18].
Gendall J took the view that whether or not there had been an express or implied promise from the deceased to reward the claimant was not a decision in the exercise of a discretion.[16] As a result, the Judge considered he was “required” to reach his “own view on the merits” in relation to that matter.[17] The Judge went on to say that “[o]nly in respect of the relief to be granted does the court of originating application have discretion, which is subject to the ordinary constraints concerning appeals against the exercise of a discretion”.[18]
[16]High Court decision, above n 2, at [9].
[17]At [10] citing Austin, Nichols, above n 13, at [16].
[18]At [10] citing Kacem v Bashir, above n 14, at [32]–[33].
The critical passage from the judgment of Gendall J for these purposes is as follows:
[12] There may be some suggestion that this Court ought to defer to the Family Court on the basis that the Family Court had the advantage of hearing the evidence first hand and was better placed to assess credibility. The decision of the Court of Appeal in Rae v International Insurance Brokers is commonly cited as advocating such deference. In that case the high water mark was the statement that “[e]xceptional caution in departing from the trial judge’s findings of fact are therefore regarded as imperative.”
[13] In my view, however, since the decision in Austin, Nichols & Co Inc v Stichting Lodestar the position with respect to deference has somewhat softened. I am expressly required to come to my own view on the merits, and to defer no more than is “customary”. This view that Austin, Nichols & Co Inc has softened the general approach is not without support. While I do not have the advantage Judge Flatley had in seeing and assessing the witnesses that were before him, I do have the advantage of hearing evidence from one new witness … . I therefore propose to approach this matter afresh, deferring only to the extent necessary to accommodate the findings as to credibility both adverse and otherwise made by Judge Flatley.
(footnotes omitted)
This aspect of the appeal focuses on the extent to which it is correct to describe the effect of Austin, Nichols as “softening” the approach in relation to deference on credibility findings and on the approach where new evidence is adduced on an appeal. The position in Austin, Nichols is encompassed in the following passage from that judgment:[19]
The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Rangatira Ltd v Commissioner of Inland Revenue.
[19]Austin, Nichols, above n 13, at [13] (footnotes omitted).
As Mr Shiels emphasises, questions of credibility were not in issue in Austin, Nichols. Rather, that case involved the use of trade marks in which the appellate court was as well-placed to make an assessment as the Court below.
In Kacem v Bashir, the Supreme Court explained that the “important point arising from Austin, Nichols” was that:[20]
… those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment.
[20]Kacem v Bashir, above n 14, at [32] (footnote omitted).
In that case the Court also observed that if the appellate court admits further evidence:[21]
… that evidence will necessarily require de novo assessment and consideration of how it affects the correctness of the decision under appeal. The Court of Appeal was right to say that Courtney J had rather overstated the effect of Austin, Nichols when she indicated she should approach the appeal to the High Court “uninfluenced” by the reasoning of the Family Court. The High Court was required to reach its own conclusion, but this did not imply that it should disregard the Family Court’s decision. What, if any, influence the Family Court’s reasoning should have was for the High Court’s assessment.
[21]At [31] (footnote omitted).
Accordingly, as this Court said in QBE Insurance (International) Ltd v Pegasus Group Ltd:[22]
[The appellate Court] must review the evidence anew and form its own opinion on disputed facts independently of the trial Judge exercising however the customary caution where a credibility finding is in issue. We are conscious that within the setting of a tightly contested trial the Judge is constantly assimilating and evaluating evidence as it unfolds gradually under examination. That factor does not of course immunise a Judge’s finding from challenge. But the deliberative process, and the well accepted benefit enjoyed by a trial Judge in seeing and hearing a witness, cannot be replicated within the confines of an appellate hearing. We must give appropriate weight to the trial Judge’s assessment of a witness whose credibility was under attack.
[22]QBE Insurance (International) Ltd v Pegasus Group Ltd [2011] NZCA 268 at [83].
These authorities illustrate that if Gendall J was suggesting he could just start afresh, given the new evidence, and ignore findings of credibility, that would not be right. However, while the point being made in relation to the effect of Austin, Nichols may have been expressed a little differently we do not consider the Judge’s statement of the legal position was incorrect in a material way.
The high point of the appellant’s case in this respect is the Family Court Judge’s finding that the Irelands’ “obvious bitterness” towards Mrs Osmand had led the Irelands “to construct a claim that they provided work or services which would lead to a conclusion that a required promise was more likely than not to have been made”.[23] Judge Flatley went on to say:[24]
But in doing so they fabricated and manipulated evidence, such that their credibility is seriously called into question. In any event, a clear nexus between that work and the words of [Mrs Osmand] is required but is absent here.
[23]Family Court decision, above n 1, at [198].
[24]At [198].
There would need to be good reason to depart from such a finding on appeal.[25] To determine whether the High Court Judge was correct to do so we need to examine the factors Gendall J relied on for taking a different view. We deal with each of these in turn.
The evidence
Mrs Osmand’s wills
[25]Teat v Willcocks [2013] NZCA 162, [2014] 3 NZLR 129 at [31].
The Family Court had evidence about four wills. The first will was dated 20 December 1983 (the first will). Under that will, all of Mrs Osmand’s property was left to the appellant. The second will was dated 2 May 1991 (the 1991 will). This will revoked the first will and the appellant was to receive $20,000 and household articles and Mr Ireland the residue and bulk of the estate, including the farm. The third will dated 13 March 2001 (the 2001 will) essentially reverted back to the position as under the first will, as did the final will dated 28 February 2008.
Mr Ireland’s evidence was that he was present at the time Mrs Osmand gave instructions for the 1991 will. Judge Flatley referred to this as follows:
[89] It is [Mr Ireland’s] evidence that he attended a Dunedin solicitor, Mr Haggitt, now deceased, with [Mrs Osmand] at the time she gave instructions in relation to the 1991 Will and so he was aware of her intention at that time, but there is no evidence to confirm this. Mr Grant, solicitor, who continued to act for [Mrs Osmand] following Mr Haggitt’s death, said that it would be very unusual for a major beneficiary to be present at a meeting where instructions were given for the making of a Will and that he was quite sure that it would not have been Mr Haggitt’s practice.
(footnotes omitted)
Gendall J took the view that Mr Ireland’s evidence should not “simply be discarded” absent some “clear evidence to the contrary being available”.[26] Justice Gendall made the point the solicitor, Mr Grant, had no direct knowledge of what had transpired but rather was giving evidence as to what he thought would have been Mr Haggitt’s practice. By contrast, the Judge said, Mr Ireland’s evidence was first hand evidence of his own experience.
[26]High Court decision, above n 2, at [36].
When the 2001 will was prepared, it was accompanied by a letter written by Mrs Osmand. The letter included the following:
I leave my houses and farm all stock and everything that on it at the time of my death to my daughter Raylen Osmand [the appellant]. If she dose not want to use the farm she can lease it but not sell it. Dennis was going to look after it for me but it has taken him 10 year to thing about it he is still telling me lies and live in England. He wood be usles. You cannot depend on him when anything happens to me… .
(emphasis added)
The 2001 will was also accompanied by a file note from Mr Grant. This file note recorded “discussed claims that [Mr Ireland] might have been promised share in her estate. No promise ever made”. Gendall J observed that Judge Flatley took this file note as cogent evidence of the absence of any promise from Mrs Osmand to Mr Ireland. Gendall J cited this excerpt from Judge Flatley’s judgment:[27]
[101] It is clear from the file note of 30 March 2001 that [Mrs Osmand’s] position was that at no time had she promised to give the farm to [Mr Ireland] or any share in it and that she had no intention of doing so.
[27]Family Court decision, above n 1, cited in High Court decision, above n 2, at [39].
Gendall J’s response was that if Mrs Osmand was trying to write Mr Ireland out of the will despite an earlier promise, “it would clearly be in her interests to be unequivocal in such a manner to her estate solicitor”.[28] The Judge also considered it was important to understand that this will was written at a time when Mrs Osmand was “unsympathetic to the multitude of issues plaguing the Irelands, preventing their return from England”.[29]
[28]High Court decision, above n 2, at [40].
[29]At [40].
It is useful to note at this point that two themes emerge from the evidence. The first of these is that Mrs Osmand appears to have said different things to different people at different times. Mr Andersen is correct when he says that it does not necessarily follow in these circumstances that no promise was made. The timing of the 1991 will is of some significance because it came only some two years after Mr Ireland said Mrs Osmand asked the Ireland family to return to New Zealand. The second theme that can be drawn from the evidence is that the relationships between Mrs Osmand and the Irelands and between Mrs Osmand and the appellant very much had their ups and downs. The varying states of play in these relationships provides some background to the changes to the wills.
Mr and Mrs Ireland
We need to address three aspects of this evidence.
Before doing so, we interpolate here that the Family Court Judge began the judgment by stating that in Mr Ireland’s original affidavit “there [was] no evidence of a required promise made”.[30] The Judge referred to various quotes in the affidavit evidence of Mr and Mrs Ireland that he said were the extent of evidence of an express promise. Other references were “particularly vague” and lacked any nexus between the promise and work or services rendered.[31]
[30]Family Court decision, above n 1, at [21].
[31]At [26].
If by this observation the Judge meant that there was no evidence of an express promise that would be wrong. In his first affidavit, and in a subsequent affidavit, Mr Ireland did depose expressly to a promise that the farm would be his in return for his return from England and work on the farm. It may be the Judge rather meant to question in a more general sense, given his subsequent findings, the satisfactory nature or otherwise of this evidence.
The first aspect of Mr Ireland’s evidence to which we need to refer is a letter Mrs Osmand sent to Mr Ireland on 3 December 1989 which read:
I am just going into selling the sections up top and putting a house on the top and that would do you, you would have a house of your own over here. I am going to shift a state house here and fit it out just now. I am not leaving the farm to Raylene. I will have to leave you as trustee you were brought up with us. I have to sort all these things out now for I am getting older all the time.
The Family Court Judge was properly critical of irregularities in relation to the letters like this one produced by Mr Ireland.[32] Some letters, for example, were not included in their entirety. Judge Flatley saw this as manipulation of the evidence by Mr Ireland.[33] We agree that in this and in other respects, such as his evidence
about the number of return trips he made to New Zealand and the manner in which he gave his evidence, Mr Ireland’s evidence was unsatisfactory.[34] That said, for the reasons given by Gendall J we see this letter as providing support for the conclusion a promise was made.
[32]At [32].
[33]At [37].
[34]Mr Shiels referred, for example, to the number of occasions on which Mr Ireland had to be directed by the Family Court Judge to answer the question and the fact that he sometimes blamed his lawyer for gaps in the evidence.
The Family Court Judge saw the reference to trusteeship as different from inheritance and owning the property. He also saw the letter as indicating the Irelands would get the section rather than the farm.[35]
[35]At [36].
We agree that the reference to trusteeship was inapt. But we also agree with Gendall J that the reference to Mr Ireland being a trustee was:[36]
… likely to be a reference to him inheriting the farm under the will instead of Ms Busch. It is important to understand that the word “trustee” must be read in light of Mrs Osmand’s overall education and understanding of technical legal matters, and the words that followed, specifically “I will have to leave you as trustee you were brought up with us. I have to sort all these things out now for I am getting older all the time.”
[36]High Court decision, above n 2, at [77(b)].
As Gendall J stated, a later letter from Mrs Osmand to Mr Ireland dated 14 May 1990 is also relevant. It reads as follows:
The sooner you come home the better. I have about had it Raylene and Paul are around all the time panicking we have to lock everything … .
The second aspect of the evidence of the Irelands related to their financial position. The Family Court Judge found that the evidence in relation to the financial state of the Irelands’ business in England and its winding-up[37] supported a conclusion Mr Ireland experienced financial difficulty in England and that his decision to relocate to New Zealand was very likely motivated by those problems and the opportunities available in New Zealand.[38] In addition, the Judge rejected the claim that the Irelands built or paid for the Versatile cottage citing the absence of any documentary evidence of that and the oddity of the fact the Irelands entered into a tenancy agreement in relation to the cottage.[39]
[37]The company went into liquidation in early 2000.
[38]Family Court decision, above n 1, at [135].
[39]At [152].
To put this evidence in context, there were two possible theories canvassed in the evidence. First, the Irelands had to leave England because their financial state there was somewhat precarious. The second theory, the Irelands’ case, was that they left England because Mrs Osmand had promised Mr Ireland the farm if he returned to work there.
We agree with Gendall J that in this respect the Family Court Judge should have given weight to the evidence from Christchurch lawyers confirming that the Irelands had purchased a property outright in New Zealand in 2002 prior to their return.[40] The statement in evidence showed a cash deposit of $175,000 being paid. As Gendall J said:[41]
It is difficult to appreciate how paying a 50% property purchase deposit would be possible in the face of alleged financial difficulty. Further, it seems that the remaining $175,924.58 was also funded by the Irelands direct, without a mortgage. The certificate of title shows no mortgage registered against the title until 2006. This must further support a contention that the Irelands were not impecunious.
[40]The Family Court Judge questioned the lack of evidence of transfer of the funds.
[41]High Court decision, above n 2, at [82].
We accept that the evidence about the tenancy agreement is difficult to explain. However, as Gendall J said, the finding of financial difficulty also ignored the evidence of Mr Scott.[42] Mr Scott was Mrs Osmand’s accountant for some 30 years and evidently close to her. He was, as Gendall J said, best placed to comment on financial issues within his knowledge. Mr Scott stated that Mrs Osmand had told him that Mr Ireland had remitted funds to her to erect the Versatile cottage and to enable her to have an operation. Margaret Weatherall, a friend of Mrs Osmand, said Mrs Osmand told her that Mr Ireland had put “a lot” of money into the Versatile cottage.
[42]At [83].
As to the associated concern by the Family Court Judge as to the absence of documentary evidence supporting the Irelands’ claim, some source material could have been obtained from banks and the like. However, we agree with Gendall J that some account should have been taken of the fact the Irelands’ records and belongings were destroyed by a fire.[43]
[43]At [47].
Finally, the Family Court Judge found that the Irelands had exaggerated the evidence of the work they said they had done on the farm.[44] He accepted they were likely to have done some work but that was limited by way of reasonable assistance given time they had spent living rent-free on the farm. By contrast, the High Court Judge accepted that the affidavit evidence of the Irelands established significant work and services were provided.[45] Some misconception has arisen from the fact that the Family Court Judge did not factor in that some of the hours recorded reflected a three-week period when the Irelands spent 24 hours a day looking after Mrs Osmand’s farmstay.
The Irelands’ children
[44]Family Court decision, above n 1, at [175].
[45]High Court decision, above n 2, at [95].
The Family Court Judge was critical of the evidence of the Irelands’ three children particularly that of Jessica who he found to be not credible.[46] The Judge also considered that the affidavit evidence of the other two children, Naomi and Lydia, provided little assistance.[47] He was concerned that all three children had based their evidence on what they had been told by their parents and that the children were influenced by their feeling Mrs Osmand had treated them unfairly.[48]
[46]Family Court decision, above n 1, at [49].
[47]At [53].
[48]At [55]–[56].
Lydia’s evidence, however, can be seen as in a different category. Her evidence was that she had a special bond with Mrs Osmand and that Mrs Osmand had told her that her father would take over the farm. She said that Mrs Osmand had talked about the farm being her father’s. Gendall J highlighted the fact that Lydia’s evidence reflected her direct conversations with Mrs Osmand and that Lydia was old enough at the relevant time to have an independent recollection of the discussions.[49] Mr Shiels is correct that this can be seen as evidence of an expectation rather than a promise, but it is a thread that should have been taken into account.
Mr Scott
[49]High Court decision, above n 2, at [59].
Mr Scott’s evidence is relevant on two aspects, first, whether there was a promise and secondly as to the funding arrangements for the erection of the Versatile cottage. We have dealt with the latter. Mr Scott’s evidence in relation to the promise was important. He said that throughout his relationship with Mrs Osmand, she had indicated to him that Mr Ireland would be getting the farm. Mr Shiels emphasises that Mr Scott accepted that he had not discussed with her what would be in her will. But she did say to him that she wanted Mr Ireland and the family to come home from England and take the place over.
Mr Scott accepted he was not too sure how Mrs Osmand would have accomplished Mr Ireland obtaining the farm but he would have thought “naturally” that it would be left to him. We agree there are aspects of this that may be viewed as evidence as to expectation. But it is important evidence nonetheless supporting the Irelands’ claim because Mr Scott was close to Mrs Osmand over a long period of time and, as we have said, a trusted adviser. This evidence accordingly came very close to someone, in effect, speaking for Mrs Osmand.
Ms Forsdyke
Ms Forsdyke said she was assured by Mr and Mrs Ireland of the benefit of going back to New Zealand. That benefit was “mainly the security they would have from being the eventual owners of the Betty’s farm”. She also went on to say that when she was in New Zealand for a visit, Mrs Osmand spoke to her about the farm and said it was security for Ms Forsdyke’s son-in-law and daughter. She talked about going out for the day with Mrs Osmand and in the course of that outing she said Mrs Osmand told her she had promised Mr Ireland the farm and indicated he would get her half anyway when she died because it was already in joint names.
Gendall J rightly recognised some of the limitations on this evidence. Ms Forsdyke accepted that she was “incensed” by the Family Court Judge’s decision. She was also obviously not independent. Further, she developed her evidence somewhat from her affidavit, which referred only to the “security” of the farm. But she did explain in her evidence in cross-examination that she should perhaps have said that Betty promised the farm. She accepted the concepts of security and a promise were different but maintained that she understood a promise had been made. It was open to Gendall J to accept this evidence as credible. Having done so, this evidence became part of the totality of the evidence that had to be evaluated.
Other evidence
The Irelands called evidence from two other witnesses, John Clearwater and Ms Weatherall. Mr Clearwater said that Mrs Osmand left him with the impression that Mr Ireland was to receive the farm. He said he understood that Mr Ireland was coming home from England to look after Mrs Osmand and take over the property. Ms Weatherall referred to Mrs Osmand “chopping and changing her mind” about what she was going to do with the farm.
Evidence to the opposite effect came from three people who had a fairly lengthy associations with Mrs Osmand. Tawhiri Karetai spoke of maintaining regular contact with Mrs Osmand over a long period. He said Mrs Osmand told her the farm would be the appellant’s. Roberta Paget, a friend of Mrs Osmand said she never heard a promise of the farm to Mr Ireland. Donna Ropata said that Mrs Osmand told her that Mr Ireland’s share was the section and the money she gave him. The rest of the farm would go to the appellant.
Judge Flatley preferred the latter evidence to that of Mr Clearwater and Ms Weatherall.[50] Gendall J did not disagree with that assessment but concluded that, “on balance”, Mrs Osmand gave the two “groups” different versions as to what would happen to the farm on her death.[51] Mr Shiels is critical of Gendall J’s observation that the difficulty for these witnesses was that they were proving a negative.[52] We do not see the Judge’s observation as any suggestion of a reversal of the onus but, rather, an identification of the practical difficulties of supporting a negative.
Drawing the threads together
[50]Family Court decision, above n 1, at [85].
[51]High Court decision, above n 2, at [77(e)].
[52]At [68].
Gendall J’s conclusion was as follows:
[86] In reaching the conclusion that there has been a promise made by Mrs Osmand to the Irelands, I have had regard to their evidence (acknowledging Judge Flatley’s credibility findings), their daughters’ evidence (particularly Lydia’s), the other evidence of corroboration (of which I found Mr Scott’s evidence particularly compelling), the context (the most important contextual matters being the entire family background of Mr Ireland’s upbringing with the Osmands and the fact that the Irelands moved to New Zealand from the other side of the world) and importantly the 3 December 1989 letter indicating Mrs Osmand’s intentions and promise, as confirmed later in Mrs Osmand’s 1991 will. In reaching this conclusion I have also placed some weight on the evidence of Ms Forsdyke who, first, I found to be a caring and sensitive grandmother who had established a relationship with Mrs Osmand and, secondly who, although an interested party here as the mother of Mrs Ireland, I found to be a credible witness. This evidence not only supports the making of a promise to the Irelands, but also goes some way as independent evidence to establish that the promise was made also to Ms Forsdyke herself.
Essentially for the reasons given by Gendall J, we agree. This was not an easy case and Mr Ireland, in particular, did not always advance his own cause in a satisfactory manner. The matter was further complicated by the admission of the new evidence on appeal, which did require some reassessment of the totality of the evidence in the way the Supreme Court anticipated in Kacem v Bashir.[53] It would obviously have been preferable for all of the evidence, including that of Ms Forsdyke, to have been considered together. But, because of the new evidence and the fact there was evidence not factored in by the Family Court, we consider this was one of those unusual cases where, despite the credibility finding, the appellate Judge was correct to take a different view to ensure a just result.
[53]Kacem v Bashir, above n 14, at [31].
In summary, there were a number of threads of evidence that should have been brought into the mix or given greater weight in the Family Court but were not and which, taken together with the new evidence, lead to the view taken by Gendall J.
Result
The application for leave to admit new evidence is declined. We answer the question for which leave was granted in the affirmative, namely, that the High Court Judge applied the correct approach on appeal. The appeal is dismissed. Costs are reserved pending the filing of brief memoranda advancing any reasons why costs should not follow the event. The memorandum from the appellant is to be filed by 12 noon Tuesday 16 August 2016 and by the first respondents by 12 noon Tuesday 23 August 2016.
Solicitors:
Solomons, Dunedin for Appellant
Official Assignee, Ministry of Business, Innovation and Employment, Christchurch for First Respondents
Gallaway Cook Allan, Dunedin for Second Respondents
6
0