Busch v Ireland - [2016] NZCA 391

IN THE COURT OF APPEAL OF NEW ZEALAND

CA650/2014
[2016] NZCA 391

BETWEEN	ROLIEN GEERTRUIDA BUSCH Appellant
AND	DENNIS PAUL IRELAND AND ANGELA CATHERINE IRELAND First Respondents
AND	STEPHEN JOHN GRANT AND DAVID JAMES SMILLIE Second Respondents

Hearing:	19 May 2016
Court:	Ellen France P, Stevens and Kós JJ
Counsel:	T J Shiels QC for Appellant L A Andersen for First Respondents
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
Background
Application for leave to admit new evidence
The appellant’s case on appeal
The appellate approach
The evidence
Mrs Osmand’s wills
Mr and Mrs Ireland

The Irelands’ children

     Mr Scott
     Ms Forsdyke
     Other evidence
Drawing the threads together
Result

[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…

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 Busch v Ireland

Details

AGLC: Busch v Ireland [2016] NZCA 391
Case: [2016] NZCA 391
Decision Date: 11 August 2016 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Rolien Geertruida Busch against the decision of the High Court, which allowed an appeal by Dennis and Angela Ireland against a decision of the Family Court. The Irelands had brought a claim under the Law Reform (Testamentary Promises) Act 1949, alleging that Busch's adoptive mother, Betty Osmand, made a testamentary promise to them. The Family Court dismissed the claim, but the High Court allowed the appeal, and the appeal now rests with the Court of Appeal.

The Court of Appeal declined the appellant's application for leave to admit new evidence and answered the question for which leave was granted in the affirmative, namely, that the High Court Judge applied the correct approach on appeal. The Court of Appeal found that the High Court Judge was correct to consider the new evidence and come to his own conclusion on the matter, as he was entitled to do under the principles of appellate review. The Court of Appeal also found that the High Court Judge was correct to take a different view to ensure a just result, despite the Family Court's credibility findings.

The Court of Appeal agreed with the High Court's conclusion that a testamentary promise was made by Mrs Osmand to the Irelands. The Court of Appeal found that 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. The Court of Appeal dismissed the appeal and reserved costs 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.

Orders